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 UNIVERSITY 
 
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 FUND GIVEN IN 1891 BY 
 
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THE 
 
 CONSTITUTIONAL HISTORY 
 
 OF 
 
 NEW YORK 
 
 FROM THE BEGINNING OF THE COLONIAL PERIOD TO THE 
 
 YEAR 1905, SHOWING THE ORIGIN, DEVELOPMENT, AND 
 
 JUDICIAL CONSTRUCTION OF THE CONSTITUTION 
 
 By CHARLES Z. LINCOLN 
 
 Member op ths New York Constitutional Convention of 1894, and for Six 
 
 Years (1895-1900), Chairman of the Statutory Revision Commission and 
 
 Legal Adviser to Governors Morton, Black, and Roosevelt 
 
 IN FIVE VOLUMES 
 
 VOL. L 
 I 609- I 82 2 
 
 THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY 
 Rochester N, Y. 
 
 1906 
 
Entered according to Act of Congress, in the Tear nineteen hundred six, by 
 
 CHAKLES Z. LINCOLN, 
 
 In the OfBoe of the Librarian of Congress, at Washington, D. C. 
 
 E. u. AKDBBWB PBiNTiiSa CO., Hochester, N. T. 
 
GENERAL PREFACE. 
 
 Soon after the termination of my ofiScial service as 
 legal adviser to the governor, and as chairman of the 
 Statutory Revision and Code Commissions, which event 
 occurred on the 31st day of December, 1900, at the close 
 of Gk)vernor Roosevelt's administration, I began to 
 gather materials for a history of the Constitution of New 
 York. During my six years in office, constitutional ques- 
 tions were frequently presented which required an imme- 
 diate answer, but which could not be answered without a 
 careful study of the Constitution, its judicial interpreta- 
 tion, and the genesis and historical development of the 
 particular provision under consideration. It often became 
 necessary to search the records of constitutional conven- 
 tions, commissions, legislative proceedings, and other 
 sources of information which might offer any explana- 
 tion of the reason underlying the provision in question, 
 and of its intended scope and application. It was not 
 always practicable to make a thorough examination 
 without more time than was possible during a session of 
 the legislature; therefore my conclusions were sometimes 
 not satisfactory to myself, and in some cases they prob- 
 ably would have been modified if I had been able to find 
 the root of the matter. 
 
 I am not aware that any attempt has hitherto been 
 made to write a history of our Constitution. I think 
 every student of this instrument must keenly appreciate 
 the lack of such a history. There is not only no history 
 of the Constitution, showing its origin, evolution, de- 
 velopment, and interpretation, but I was surprised to find 
 that few of the great subjects included in the Constitu- 
 
 iii 
 
iv General Preface. 
 
 tion had received any special historical consideration. 
 So, on retiring to private life after six years spent in a 
 responsible, but peculiarly congenial, official position, I 
 thought I might render a service to my successors by 
 writing a history of our fundamental law. While en- 
 gaged in this work I have often wished that the results 
 of my study had been available to me at a time when so 
 many questions were not, as they are now, largely aca- 
 demic, but required immediate and practical solution. 
 
 My studies have necessarily covered a wide field, and 
 I have tried to set in order the various elements of our 
 constitutional history in their appropriate relations to 
 one another, so that the reader may readily appreciate 
 the continuity and the unity of our constitutional system. 
 This has required a study not only of the text of the Con- 
 stitutions and other documents and records, but also of 
 social, political, and commercial conditions out of which 
 have developed the principles which are now embodied 
 in the Constitution. I have therefore studied men as 
 well as measures, and have tried to discover the motives 
 which prompted particular constitutional provisions. I 
 have endeavored to put myself in the place of these men, 
 and appreciate their point of view. One result of this 
 method of studying the subject has been to give the book 
 in many of its parts a personal quality. As I have studied 
 the debates of constitutional conventions, executive mes- 
 sages, documents, reports of committees, petitions to the 
 legislature, judicial opinions, biographies and histories, 
 I have come to feel a personal acquaintance with many 
 men who have made New York great, — ^have learned 
 somewhat of their mental processes, the scope of their 
 moral perceptions, and their ideals and purposes, — and 
 have become accustomed to expect from them an expres- 
 sion of opinion consistent with their habits of thought and 
 their attitude in relation to important principles of gov- 
 ernment. Thus in considering great problems of consti- 
 
General Preface. v 
 
 tutional reform, I naturally turned to certain leaders, to 
 ascertain their opinions or impressions of the proposed 
 policy. 
 
 A study of the Constitution may, from some points of 
 view, be deemed dry and uninteresting; but when it is 
 remembered that the constitution of a free people repre- 
 sents in outline the beliefs, the sentiments, the enthusi- 
 asms, and the policies which the people themselves ap- 
 prove and illustrate in the various relations of daily life, 
 the Constitution becomes a thing of life, activity, and 
 power. It has a spirit which expresses itself in various 
 forms and by numerous avenues, and, reading between 
 the lines, and beyond the cold letter of the instrument, we 
 discover the struggles, the hopes, the aspirations, the de- 
 feats, — often only temporary, — and the final successes 
 of a sovereign people, fully sensible of their opportunities 
 and responsibilities as exponents of the results of a broad 
 and free civilization. 
 
 After the larger part of the book had been written, I 
 found, in the Albany Argus, a sentiment which closely 
 accords with my own view of the proper scope of a gen- 
 eral work on history. This writer says that "history is 
 most useful and most intelligible when it shows accurate- 
 ly the course of events, the motives underlying them, and 
 the people who shaped them." I have tried to apply this 
 rule in the present work, — to state every fact with all 
 possible accuracy, to discover the motive and purpose of 
 each proposed constitutional reform, and to present a 
 view of the men who shaped the Constitution, so far as 
 this was practicable from reported speeches and other 
 documents purporting to contain a statement of their 
 opinions and intentions. 
 
 Plan of the Work. 
 
 I have already referred to the continuity of our con- 
 stitutional history, and I believe that no student of the 
 
vi General Preface. 
 
 following pages can fail to be impressed by its unity. 
 Several features of our constitutional system are very 
 old, and have been prominent in our history from the be- 
 ginning. We find them in all our Constitutions, even 
 reaching far back into the colonial period; and the ele- 
 ments of our political organization appear to-day in sub- 
 stantially the same form as when Dutch and English 
 colonists began laying in New York the foundations of a 
 new civil society. At the outset of my studies it became 
 necessary to determine whether our history should be 
 treated topically, developing each subject independently 
 from the beginning, or whether a chronological order 
 should be observed, including a separate consideration 
 of each constitutional period. Each constitutional con- 
 vention marks either the beginning or close of a distinct 
 period, culminating in a new Constitution, intended to 
 embody the latest views of constitutional government, in- 
 cluding principles which had been modified by constitu- 
 tional revision during the preceding period. 
 
 Each plan has its advantages. By the topical arrange- 
 ment it is possible to present a connected view of a sub- 
 ject, from its inception to the result as expressed in the 
 latest constitutional provision; and all aspects of its de- 
 velopment may be presented in their natural and chrono- 
 logical order. But, as already suggested, each conven- 
 tion or popular movement for constitutional reform is 
 distinctive. Each convention or commission is composed, 
 for the most part, of a new body of men, often with opin- 
 ions concerning public afifairs quite different from those 
 entertained by their predecessors. These opinions are 
 often based on new experience, and we therefore natu- 
 rally expect to find in each convention propositions for 
 reform which are here presented for the first time. 
 
 Thus it will be observed that the Convention of 1801 
 was called primarily to construe and determine the 
 powers of the Council of Appointment. It therefore 
 
General Preface. vii 
 
 represented a peculiar political movement, and is unique 
 in our constitutional history. So, the Convention of 
 1 82 1 was the result of a movement for general constitu- 
 tional revision. It was called at a time when many states 
 were reconstructing their constitutional systems, and 
 making new Constitutions to take the place of those un- 
 der which state governments had been organized at the 
 beginning of the Revolution. This convention marked 
 a distinct stage of constitutional developrrient, and its 
 history cannot be repeated. The same remark might be 
 made of the Convention of 1846, which illustrated the 
 reaction against centralized power; and its work was 
 especially significant in the restraints imposed on legisla- 
 tive authority. The Convention of 1867 came soon after 
 the close of the great Civil War, which had compelled 
 men to take new views of Federal authority, and the ex- 
 tent and limitations of the powers possessed by the states. 
 This convention's reconstruction of the judicial system 
 marked a distinct advance in the development of that de- 
 partment of government, and was the crowning feature 
 of its work. The Convention of 1894 was held at a time 
 when it was believed that legislative reorganization, 
 canals, and the judiciary demanded serious attention and 
 possible modifications to meet conditions which could not 
 have been anticipated by earlier constitution-makers. So, 
 the Commissions of 1872 and 1890 represented distinct 
 movements, — the first having been called to consider a 
 general revision deemed necessary because of the failure 
 of a part of the work of the Convention of 1867, and the 
 second, the Commission of 1890, having been, charged 
 with the express duty of proposing a plan for the reor- 
 ganization of the judiciary. Each intervening period be- 
 tween general conventions has been marked by agitation 
 in favor of particular reforms, some of which were 
 adopted in fragments, while others were postponed for 
 consideration by regfular conventions. 
 
viii General Preface. 
 
 These periodical movements for constitutional reform 
 seemed to demand separate treatment, and I have there- 
 fore adopted the general plan of considering each period 
 or movement by itself. This makes it possible to de- 
 scribe, wherever practicable, the preliminary agitation 
 leading up to a convention or other organized movement 
 for revision, and also makes it possible to present the 
 names, and more distinctively the work, of the men who 
 have been chiefly influential in producing the results ac- 
 complished during the several periods. 
 
 But a topical treatment has also been applied in many 
 instances. It has been my purpose to give a brief histor- 
 ical sketch of each subject immediately preceding its in- 
 clusion in the Constitution; but, for practical reasons, 
 this rule could not always be followed. Sometimes these 
 historical notes seemed most appropriate in discussing 
 the work of a particular convention; but, in several in- 
 stances, it seemed most desirable to present them in con- 
 nection with the annotated Constitution, in the fourth 
 volume. Both plans have therefore, to some extent, been 
 combined; and while distinct periods have, in general, 
 been considered in separate chapters, many subjects have 
 been treated topically. Thus, the reader will find special 
 articles on Agricultural Leases, Appot4;ionment, Banking 
 and Currency, Bill of Rights, Bi-partisan Election 
 Boards, Canals, Civil Service, Cornell University, Cor- 
 porations, Education, Enacting Clause, Executive De- 
 partment, Forest Preserve, Free Canals, Home Rule, In- 
 dian Lands, Judiciary, Legislature, Limiting State Debts, 
 Lotteries, Militia, Prison Labor, State Aid to Private 
 Enterprise, Suffrage (including woman suffrage), 
 Thirty-day Period, and several other subjects less fully. 
 These sketches and historical notes will be found, for the 
 most part, in the first three volumes ; but, as already sug- 
 gested, notes on important historical subjects are pre- 
 sented in the fourth volume. 
 
General Preface. ix 
 
 Our constitutional history includes not only what legis- 
 latures, conventions, and commissions have presented for 
 popular consideration, but also judicial interpretation, — 
 the two together constituting the whole body of our his- 
 tory, both formative and judicial. Judicial decisions con- 
 stitute the history of construction, while the other matter 
 is the history of constitutional formation. Historical 
 matter has been freely presented in the judicial notes, and 
 I have endeavored to use enough of each decision to show 
 the question involved, and the views of the court concern- 
 ing it. The fourth volume is intended specifically for use 
 in ascertaining the judicial construction which has been 
 applied to the Constitution; but, in many instances, the 
 reader will doubtless find it necessary to consult earlier 
 parts of the work for the history of existing constitu- 
 tional provisions. 
 
 I think special attention should be directed to the tables 
 of statutes which have received judicial interpretation on 
 constitutional grounds. From the beginning of my stud- 
 ies I made notes showing the construction given to par- 
 ticular statutes, and have collected and arranged these 
 statutes in tables, which may be found in the fifth vol- 
 ume. I have made no separate search for such statutes, 
 but have endeavored to include in the list all statutes 
 which have been directly construed by the courts. I think 
 the tables will be found to include most of the statutes 
 involving important constitutional questions. I believe 
 no attempt has hitherto been made to present the statutes 
 in this form, and it is hoped that the tables will be found 
 useful by judges, lawyers, legislators, and others who 
 may wish to ascertain whether the validity of a particular 
 statute has been challenged on constitutional grounds. 
 
 It was my original plan to present in an appendix all 
 the Constitutions and amendments heretofore adopted in 
 the state, and also other documents of a similar charac- 
 
X General Preface. 
 
 ter, including Magna Charta, the New York Charter of 
 Liberties, the Declaration of Independence, the Articles 
 of Confederation, and the Federal Constitution and 
 Amendments, thus enabling the reader to consult, in their 
 regular chronological order, all these great political docu- 
 ments from Magna Charta, in 12 15, to the amendment 
 of 1901. On further consideration it seemed more ap- 
 propriate to place these documents at the beginning of the 
 book. I then wrote the introductory note on the Consti- 
 tutions of New York, presenting there, in as compact a 
 form as seemed practicable, a preliminary sketch of the 
 development of our constitutional system, from the be- 
 ginning of the colonial period to the latest amendment. 
 Several subjects appearing here only in outline had al- 
 ready been considered in detail in various chapters, while 
 other subjects have been developed here more fully than 
 elsewhere, — particularly the description of the Constitu- 
 tion of the colony, as expressed in royal commissions and 
 instructions, and the situation which existe^l during the 
 interregnum caused by the Revolutionary War. Our 
 history is a unit, and I have tried to make the book a 
 unit; therefore the reader need not be surprised to find 
 the earliest as well as the latest history in any part of 
 the work. This arrangement follows the plan already 
 outlined, by which subjects are considered according to 
 their natural development. 
 
 Sources of Information. 
 
 In many respects, and from many points of view, the 
 sources of information are ample. The records of con- 
 ventions, legislatures, and commissions are accessible, 
 and, for the most part, these records have been printed, 
 and may be easily examined. Modem legislative and 
 convention records are so well arranged and so fully in- 
 dexed that it is not difficult to study specific subjects, and 
 
General Preface. xi 
 
 glean from them such information as may be desirable in 
 preparing a history of the Constitution. Some of the 
 earlier records, however, were not so carefully preserved, 
 and it has therefore been necessary to examine many 
 other sources of information to discover not only what 
 was actually done, but especially the motives which 
 prompted action in a particular instance. 
 
 The Colonial Documents, edited by Dr. Edmund B. 
 O'Callaghan, and published by the state under an act 
 passed in 1849, have been freely used in studying the his- 
 tory of the colonial period. I have also used Dr. O'Cal- 
 laghan's History of New Netherland, published in 1846, 
 Mr. Brodhead's History of New York, the records of the 
 legislature, and of the executive and legislative council 
 during the colonial period, and all other sources of in- 
 formation that seemed available, for the purpose of dis- 
 covering the facts relating to our earlier history. 
 
 The colonial constitutional policy at the beginning of 
 the Revolution, so far as specifically expressed in docu- 
 ments issued by the English government, is found in 
 Governor Tryon's commission and the accompanying in- 
 structions received by him on his appointment in 1771 ; 
 but, so far as I have been able to discover, these documents 
 have not heretofore been published. They will be found 
 at the end of the third volume of this work, except that 
 several paragraphs of the instructions containing detailed 
 commercial regulations have been omitted, for the reason 
 that they have no special constitutional or political signifi- 
 cance. I found a manuscript copy of the commission in 
 the State Library, but was unable to find a copy of the 
 instructions in this country. I therefore wrote to Hon. 
 Joseph H. Choate, then American Ambassador to Great 
 Britain, requesting his assistance in procuring a copy of 
 the instructions, which are preserved in the archives of the 
 English government. As a result I obtained a manuscript 
 
xii General Preface. 
 
 copy of the instructions, from which I have made such 
 extracts as seemed pertinent in considering various sub- 
 jects. After using these instructions the document was 
 deposited in the State Library. 
 
 The draft of the proposed Constitution submitted to 
 the Convention of 1777 has not hitherto been published, 
 so far as I have been able to discover. The original draft 
 and also the second draft will be found in the second 
 chapter, relating to the work of the first constitutional 
 convention. The records of the colonial executive coun- 
 cil have not yet been published, but in several instances 
 have been consulted during the preparation of this work. 
 I was also permitted to examine the papers of the late 
 John Jay, which are now in the custody of his great- 
 grandson, Mr. William Jay, of New York. 
 
 Executive messages covering the entire history of the 
 state, legislative and convention journals, public docu- 
 ments, newspapers and other periodicals, histories and 
 biographies, correspondence, debates and various discus- 
 sions in and out of public bodies, have been studied and 
 used for the purpose of ascertaining facts and determin- 
 ing the history and reason of various constitutional pro- 
 visions, enactments, and other declarations having a di- 
 rect or indirect relation to our constitutional history. It 
 has been impracticable to give references to all the author- 
 ities consulted, but I believe I am justified in saying that 
 every fact stated in the book is sustained by sufficient evi- 
 dence, and in most instances the reader will have little 
 difficulty in tracing subjects to their source. 
 
 Acknowledgments. 
 
 My studies have taken a wide range, and have required 
 the examination of a large mass of materials. The prepa- 
 ration of the work involved a process of selection, and in 
 
General Preface. xiii 
 
 many instances it has not been easy to choose between ma- 
 terials finally used and others equally important which 
 have been laid aside. For the most part, the sources of 
 information, in addition to my private library, have been 
 found in the State Library, in the records of the office 
 of the Secretary of State, the Comptroller's office, the 
 University, and the Department of Public Instruction. I 
 also visited the principal public libraries in New York, 
 where I was afforded every possible facility for making 
 the desired researches. 
 
 While studying the first Constitution and the work of 
 the convention that framed it, I learned that John Jay's 
 papers were still in existence, and were in the possessiO'n 
 of his great-grandson, Mr. William Jay, of New York. 
 Mr. Jay very kindly permitted me to examine these pa- 
 pers for the purpose of discovering any manuscripts re- 
 lating to the first Constitution, or the organization of the 
 state government. In making this examination I was as- 
 sisted by Prof. Henry P. Johnston, of the College of the 
 City of New York, who had recently edited John Jay's 
 letters and public papers, in four volumes, and who was 
 therefore familiar with the manuscripts. I take this op- 
 portunity of expressing my obligation to Mr. Jay and 
 Prof. Johnston for the rare pleasure of examining the 
 papers of the great patriot who performed such distin- 
 guished service in laying the foundations of our govern- 
 ment. 
 
 The State Library is, however, the great storehouse of 
 materials relating to any part of our state history. Its 
 resources are almost inexhaustible, and I think it should 
 be said here that the people of the state cannot too high- 
 ly appreciate the services of those who have collected and 
 arranged the rich treasures of this great institution. It 
 is hoped that the condition of public affairs will soon 
 warrant the legislature in providing for the erection of a 
 
xiv General Preface. 
 
 new building, in which the resources of the Hbrary may 
 be made more available for public use. The library is es- 
 pecially rich in its collection of books, documents, and un- 
 published manuscripts relating to early colonial and state 
 history, as well as in all branches of literature, both gen- 
 eral and historical. Very rarely have I failed to find in 
 the library the information I desired. At the beginning 
 of my studies the resources of the library were placed at 
 my disposal, and I was offered all possible assistance in 
 collecting the materials needed for this work. Mr. J. 
 Russell Parsons, then secretary of the University, and 
 now consul-general at Mexico, gave the most ample di- 
 rections concerning the use of the library for my pur- 
 pose, supplementing these directions by his personal at- 
 tention in many instances. Mr. Melvil Dewey, director 
 of the State Library, who is in immediate charge of the 
 institution, has, from the first, manifested great interest 
 in my work, and has granted every possible favor in the 
 examination of sources of information. The library con- 
 tains many rare books and manuscripts, some of which 
 cannot be duplicated, and which obviously cannot be 
 loaned. My examination of them was made as easy as 
 possible. I wish most cordially to express my apprecia- 
 tion of the courtesies accorded to me by Mr. Parsons and 
 Mr. Dewey. 
 
 A study of a subject which has occupied nearly fouf 
 years and a half necessarily required frequent visits to 
 the State Library, and the assistance of the library staff 
 in finding and examining books and manuscripts. I very 
 gratefully acknowledge my obligation to the members of 
 the staff for their efficiency, patience, and skill in respond- 
 ing to my numerous requests for information concerning 
 specific topics connected with my work, and I take spe- 
 cial pleasure in mentioning Mr. Dunkin V.R. Johnston, 
 reference librarian, and his assistant, Mr. George G. 
 
General Preface, xv 
 
 Champlin, Jr., and also Mr. Judson T. Jennings, former 
 assistant reference librarian, now superintendent of the 
 Carnegie Free Library at Duquesne, Pa. 
 
 My researches in the Department of Genealogy and 
 History required special service, which was very satis- 
 factorily rendered by Miss Mary A. Smith, now of La 
 Crosse, Wis., Miss May C. Nerney, and Miss Charlotte 
 J. Van Peyma, assistants in this department. 
 
 One of the most interesting places in the State Library 
 is the manuscript room, in which are preserved numerous 
 documents and manuscripts relating to some aspect of our 
 history, many of which have not yet been published. A 
 large part of the impublished records of the legislature is 
 also deposited here. I had frequent occasion to examine 
 the treasures of this room while searching for informa- 
 tion which had not yet appeared in print. My efforts 
 would often have been fruitless without the aid of Mr. 
 Arnold J. F. Van Laer, archivist, and of his assistant, 
 Mr. Peter Nelson, who freely used their expert knowledge 
 in deciphering obscure manuscripts, and enabling me to 
 reach correct results in my examination of ancient docu- 
 ments. 
 
 But the Law Library was my chief place of resort while 
 pursuing these studies. Mr. Stephen B. Griswold, who, 
 for thirty-six years, was in charge of this institution, and 
 who has seen the larger part of its growth and develop- 
 ment, took a lively interest in the work, and afforded me 
 every possible opportunity to examine books and docu- 
 ments in his department. Mr. Griswold resigned in Oc- 
 tober, 1904, and Mr. William B. Cook, Jr., the present 
 acting librarian, has continued the policy of his predeces- 
 sor so far as my relations to the library are concerned. 
 Since the beginning of my studies, he and the other as- 
 sistants, Mrs. Ellen F. Coe, Mr. Martin F. Lynch, and 
 Mr. Arthur J. Smith, have very cordially rendered ever;. 
 
xvi General Preface. 
 
 possible service in my researches among the documents 
 relating to our constitutional history. 
 
 The Comptroller's office is a mine of information relat- 
 ing to our financial history, and the student must fre- 
 quently examine the records of that office if he would in- 
 telligently study the subject of state finances.- This is 
 especially true as to canals, education, taxation, charities, 
 prisons, and the forest preserve. Mr. Willis E. Merri- 
 man, second deputy comptroller, whose long experience in 
 the office makes him an authority on all questions relat- 
 ing to state finance, gave his personal attention to mat- 
 ters on which I desired information, often making spe- 
 cial computations to determine results not elucidated in 
 the published reports. In addition to these general finan- 
 cial matters, Mr. William G. Schaible, chief clerk of the 
 Bureau of Canal Affairs, rendered very valuable aid in 
 enabling me to obtain information concerning special 
 subjects under the supervision of his department. 
 
 The office of the Secretary of State is the general de- 
 pository of records relating to state affairs, except those 
 affecting particular departments. All the Constitutions, 
 amendments, and statutes are deposited in that office, 
 and its archives also contain many other documents of 
 great importance in our history. I often had occasion 
 to make inquiries there for specific information. While 
 studying the subject of education, I naturally sought in- 
 formation, particularly relating to statistical matters, at 
 the office of the Regents, and also in the Department of 
 Public Instruction. The results of my inquiries appear 
 for the most part in the article on education, in the third 
 volume. The recent consolidation of the two departments 
 is considered in a note on the University (article 9, § 2), 
 in the fourth volume. I take pleasure in acknowledging 
 the courtesy and prompt attention of the office staff in 
 these departments, and also in the office of the Secretary 
 of State, in responding to my requests. 
 
General Preface. xvii 
 
 But the aid that I have received during the progpress of 
 the work has not all been rendered by persons in public 
 departments. I have frequently sought information from 
 private sources, and my requests have uniformly received 
 prompt consideration. It would be impracticable to men- 
 tion here all the sources from which I have received aid 
 during my studies, and I can only say that I am very 
 grateful to every person who has, in any way, contributed 
 to the accomplishment of my desire to write a history of 
 the Constitution which should be not only accurate in its 
 statements of fact, but which should also acquaint the 
 reader with the men who made that history, and the mo- 
 tives that actuated them. Special mention should, how- 
 ever, be made of the service rendered by my son, 'Mr. 
 LeRoy A. Lincoln, now of Buffalo, N. Y., who assisted 
 me in making the preliminary examination of judicial 
 decisions to be used in this work. I am also under pecul- 
 iar obligations to the publishers and the readers in their 
 office for their valuable suggestions and their untiring 
 vigilance in reading proof and otherwise perfecting the 
 book during its progress through the press. 
 
 Finally, I take great pleasure in expressing my most 
 sincere appreciation of the faithful and intelligent serv- 
 ice rendered by my stenographer. Miss Marguerite Eliza- 
 beth Griffin, of Albany, N, Y. 
 
 C. Z. L. 
 
 Albany, N. Y. 
 
 September i, 1905. 
 
PREFACE. 
 
 This volume includes a general summary of our en- 
 tire constitutional history, as expressed in the Introduc- 
 tion, and also a more particular view of constitutional de- 
 velopment to the end of the first constitutional period, 
 closing with the adoption of the Constitution of 1821. 
 The subjects treated here are specifically the Colonial 
 Period, the First Constitution, the Convention of 1801, 
 and the Second Constitution. Amendments to the second 
 Constitution will be found in the second volume, for the 
 reason that they were made during the second constitu- 
 tional period, which began in 1823, and closed in 1847. 
 It has already been pointed out in the general preface 
 that some parts of our history which chronologically 
 might have been placed in the first volume are included 
 in subsequent volumes because of their relation to spe- 
 cific topics which have there received particular consid- 
 eration for the first time. It is hoped that the Index and 
 Table of Contents will afford ready access to these sub- 
 jects. 
 
 xix 
 
CONTENTS. 
 
 INTRODUCTION. 
 
 The Constitutions of New York. 
 
 Sources of constitutional history; colonization transfers home cus- 
 toms and institutions, 3. — ^American colonists were freemen; con- 
 stitutional principles early established in colony, 4. — ^Three periods 
 in colonial history: (i) Dutch, (2) Proprietary (Duke of York), 
 (3) royal province, 5. — Early Dutch charters' similar to modem 
 Constitutions; Dutch West India Company, 1621; company vested 
 with commercial and political powers, 6. — Freedoms and Exemp- 
 tions, 1629; patroons possessed extensive judicial and political au- 
 thority, 8. — Frfeedoms and Exemptions, 1640;- municipal govern- 
 ment established with home rule characteristics, 9. — ^Reformed 
 religion supreme; other religions prohibited, 10. — Dutch West 
 India Company reserves general judicial authority; governor and 
 council, II. — Freedoms and Exemptions, 1650; Dutch Directors 
 and councils; Director's extraordinary powers; Peter Stuy- 
 vesant's commission, his powers and duties defined, 12. — ^Dr. 
 O'Callaghan's summary of Director's powers, 13. — Council a part of 
 colonial government; council often ignored by Director; Director 
 charged with exercising arbitrary power, 14. — Evolution of coun- 
 cil, which becomes the colonial executive and legislative council, 
 and afterwards the state senate, 16. — Duke of York; sovereignty 
 of colony passes from the Netherlands to England, 1664, 17. — 
 Historical sketch of conflicting claims, 17-20. — New York included 
 in territorial limits of Virginia charter of 1606, 18. — Charter to 
 Duke of York, 1664, 19. — Proprietary government established; 
 right of appeal to home government, 20. — Duke authorized to ap- 
 point colonial officers, and prescribe forms of government not in- 
 consistent with laws of England; martial law, 21. — Regulation of 
 trade; Dutch surrender, Articles of Capitulation, 22. — Comparison 
 of powers conferred on Duke of York and on Dutch West India 
 Company, 23. — Duke's form of government; Duke's Laws, 1665; 
 Richard NicoUs appointed deputy governor, 24. — Edmund Andros 
 appointed in 1674 as Duke's lieutenant and governor; Governor to 
 
 xxi 
 
xxii Contents. 
 
 appoint council of not more than ten members, residents of colony, 
 25.— Official oath, allegiance to King, and fidelity to Duke ; religious 
 toleration guaranteed, 26.— Legal process to be in King's name; 
 Thomas Dongan appointed governor, 1682, 27.— Council a constit- 
 uent part of the government ; council possessed freedom of debate ; 
 assembly established in 1683 with eighteen members; powers of 
 new legislature defined; freeman's rights guaranteed; civil service, 
 28.— Governor's military power restricted; judicial system to be 
 established; governor's pardoning power; custom houses and 
 militia, 29.— Indian lands to be purchased; Dongan plan of gov- 
 ernment earliest model of state constitutions; political liberty es- 
 tablished through commercial policies, 30. — Royal commissions and 
 instructions ; Duke of York becomes King James II., 1685, and New 
 York becomes a royal province; Governor Dongan reappointed, 
 1686; no assembly; legislative power vested in governor and coun- 
 cil, 31. — Edmund Andros appointed governor of New England, 
 1688; New York included in new domain; office of lieutenant gov- 
 ernor mentioned for first time in Andros commission; press cen- 
 sorship established, 32. — James abandons English throne, December 
 II, 1688; William and Maty become sovereigns of England; Henry 
 Sloughter appointed governor, November 14, 1689; assembly re- 
 vived and permanently established, 1691 ; legislature consists of ^ 
 governor, council, and assembly; laws approved subject to royal 
 veto; religious worship prescribed according to church of 
 England service; religious toleration guaranteed to all except 
 Papists; this rule continued through colonial period, 33. — Gov- 
 ernor admonished to facilitate conversion of negroes and Indians ; 
 school teachers to be licensed; property qualifications of officers; 
 value of current coin not to be changed; form of government es- 
 tablished under Governor Sloughter continued without substantial 
 change through colonial period, 34. — Commissions and instructions 
 constitute colonial Constitution; William Tryon appointed gov- 
 ernor, 1771 ; retired from office, 1780, succeeded by Governor James 
 Robertson, 35. — Tryon's commission and instructions; New York 
 ratifies Declaration of Independence, July 9, 1776, 36. — Governor 
 Tryon's report on constitution of goverimient, 37. — Gubernatorial 
 succession prescribed, eldest councilor to act, 43. 
 
 The Interregnum, 43-54. 
 
 No new assembly chosen during Governor Tryon's administration; 
 assembly dissolved, April 17, 1776, because not further prorogued ; 
 legislative power thus suspended not revived during colonial 
 period, 44.— New York under two governments, military and state; 
 
Contents. xxiii 
 
 southern part of colony under British martial law; residents take 
 oath of allegiance to Crown, 45. — Population of New York city, 
 1771; attempt to revoke powers of Provincial Congress; General 
 Qinton's power to restore civil government, 46. — ^King disclaims 
 intention to govern colony by military law; House of Commons, 
 1782, protests against further prosecution of war, 47. — Governor 
 Robertson attempts to re-establish civil authority; council rejects 
 proposition, 48. — Provisional treaty of peace, November 30, 1782; 
 definitive treaty signed September 3, 1783; British evacuate New 
 York, November 25, 1783, 49. — General Washington enters New 
 York the same day; Governor George Clinton assumes civil au- 
 thority; Governor Qinton convenes legislature in New York; leg- 
 islature organized in New York, January 21, 1784, 50. — Constitu- 
 tional government in northern part of state ; martial law limited to 
 field of actual military operations ; provincial Congresses and com- 
 mittees of safety, 51. — First constitutional convention, 1776; con- 
 vention exercises governmental powers; first Constitution adopted 
 April 20, 1777; ordinance establishing new government, May 8, 
 1777, S3. — New state government instituted, September, 1777, 54. 
 
 State Constitutions, 54-409. 
 
 Chronological statement of Constitutions and amendments, 54-60. — 
 National Constitution supreme, 60. — Conclusion; New York's 
 actual constitutional history covers 284 years; 39th Article 
 of Magna Charta connecting link between ancient and modem 
 constitutional systems, 62. — Magna Charta, sketch of its ori^n; 
 text, 64-94. — Charter of Liberties and Privileges, 1683, 95-107. — 
 Declaration of Independence, 1776, 108-114. — ^Articles of Con- 
 federation, 1778, 115-129. — Constitution of United States, 1787, 
 130-150. — First ten amendments to Federal Constitution, 1789, 
 151-155. — Eleventh Amendment, 1798; Twelfth Amendment, 1804, 
 155, — ^Thirteenth Amendment, 1865; Fourteenth Amendment, 
 1868, 157. — Fifteenth Amendment, 1870; New York attempts to re- 
 scind ratification, 159. — New York Constitution, 1777, with notes, 
 162-188. — Amendments, 1801, 189-191. — Constitution, 1821, with 
 notes, 192-221. — ^Amendments, 222-225. — Constitution, 1846, with 
 notes, 226-280. — Amendments, 1847-1894, 281-324. — ^Judiciary Arti- 
 cle, 1869, 281. — ^Amendments of 1874, 295. — Miscellaneous Amend- 
 ments, 311. — Constitution of 1894, 325-402. — Amendments to Con- 
 stitution of 1894, 403-4O9- 
 
xxiv Contents. 
 
 CHAPTER I. 
 
 The Colonial Period. 
 
 Early Dutch records lost, 410.— Captain Henry Hudson discovers 
 New York harbor and explores Hudson river, 1609; Dutch open 
 trade with Indians ; four houses on Manhattan Island, 1613 ; States 
 General encourage discoveries, 1614; charter granted to Amster- 
 dam merchants for New Netherland trade, 411. — Dutch West India 
 Company's charter, 1621; colonization begins, 1623, 412. — Peter 
 Minuit, governor, 1626, with a council of five; Charter of Free- 
 doms and Exemptions, 1629; patroon government established, 413. 
 — New charter proposed, 1638; not adopted; religious toleration 
 recommended; William Kieft, director, 1638; government reor- 
 ganized; beginning of representative government, 1641; popula- 
 tion then about 400, 414. — Twelve Select Men chosen ; first repre- 
 sentative body in colony,. 415. — Director Kieft prohibits meetings 
 of Twelve Men, 1642; Director summons people to meet for con- 
 sideration of colonial affairs, 1643; Eight Men chosen, September, 
 1643; exercise advisory and legislative functions, 416. — Peter 
 Stuyvesant assumes office as director, May, 1647; Nine Men 
 chosen from eighteen elected by people; Nine Men, their powers 
 and duties defined, called "Tribunes of the People," 417. — No rec- 
 ord of Nine Men after 1652; municipal government established in 
 New Amsterdam, 1653; population then about 800; representative 
 convention meets in City Hall, November, 1653, to consider public 
 affairs, 418. — Another convention called to meet in Decem- 
 ber; latter convention presents remonstrance against exist- 
 ing conditions, 419. — Remonstrance asserts right of people to 
 participate in government, 420. — Another convention held April 16, 
 1664; New Amsterdam surrendered to English, August, 1664; 
 name changed to New York; Articles of Capitulation, 42^. — Lib- 
 erty of conscience guaranteed; local oificers continued; Duke of 
 York becomes proprietor of colony, 1664, 422. — Hempstede conven- 
 tion, 1665; promulgates Duke's Laws; religious toleration- secured, 
 423- — Eight overseers to be chosen in each town ; popular suffrage 
 in local affairs; government of New York city changed, June, 
 i66s; mayor, aldermen, and sheriff provided; people petition for 
 representative government, 1669, 424.— Governor's council of eight 
 men, including mayor and secretary of province, 1671 ; Dutch re- 
 take New York, August, 1673 ; treaty of Westminster, 1674, New 
 York retransferred to the English ; second patent to Duke of York, 
 June, 1674; formal transfer of colony, November, 1674, 425.— 
 
Contents. xxv 
 
 Agitation for representative government, 1675; Duke rejects prop- 
 osition, 426. — Trouble over customs duties, 1681 ; its effect in pro- 
 moting popular government, 427. — Petition for assembly, 1681, 
 428.^Thomas Dongan appointed governor, September, 1682; in- 
 structions to Governor Dongan, January, 1683; Governor directed 
 to call assembly, 1683, 429. — ^Laws subject to veto by governor and 
 Duke, 43a.— Laws approved by governor were binding until notice 
 of disapproval by Duke ; representative government inevitable, per- 
 sonal government impossible, in New York, 431. — First general 
 assembly, October, 1683; assembly journals lost, 432. — Charter of 
 Liberties and Privileges, 433. — ^James, as Duke, approves charter, 
 but afterwards, as King, rejects it; Duke of York becomes King 
 of England, February, 1685, 434. — Governor Dongan dissolves as- 
 sembly, August, 1685 ; second assembly, October, 1685 ; dissolved 
 January, 1687; Governor Dongan receives new commission, June, 
 1686, 435. — Legislative power vested in governor and a council of 
 seven members; New York annexed to New England, 1688; Ed- 
 mund Andros appointed governor ; James abandons English throne, 
 December, 1688; succeeded by William and Mary, 436. — Henry 
 Sloughter appointed governor, November, i68g ; Leisler's assembly, 
 1690, 437. — Assembly revived and established ; new assembly meets, 
 April 9, 1691 ; new Charter of Liberties, 1691, 438. 
 
 The Colonial Legislature, 441-454. 
 
 Principles of representation; locality and population apportionment; 
 colonial council; its powers and functions defined, 442. — Governor 
 not permitted to act as member of legislative council, 1735, 443. — 
 Procedure in legislative council, 443-445. — Assembly asserts exclu- 
 sive jurisdiction to originate and control money bills; assembly 
 procedure similar to that of House of Commons, 447. — Governor's 
 speech on opening of legislature, 450. — Official oath of members of 
 assembly, 451. 
 
 The Colonial Judiciary, 454-463. 
 
 Dutch West India Company exclusively intrusted with administra- 
 tion of justice, 454. — Original courts, 455. — Courts established by 
 Stuyvesant, 456. — Courts of admiralty and probate; appellate tri- 
 bunal consisted of Director and council; courts prescribed by 
 Duke's Laws, 1665, 458. — Province divided into three ridings; 
 general assizes, 459. — Mayor's court; jury of twelve in civil causes; 
 province retaken by the Dutch, August, 1673 ; second English con- 
 quest, 1674; English courts reorganized, 1674, 460. — Province di- 
 vided into twelve counties, 1683; four courts established, 1683; a 
 
xxvi Contents. 
 
 petty local court, county court of sessions, oyer and terminer, and 
 court of chancery; judicial system reorganized, 1691 ; court of 
 chancery, supreme court, common pleas, courts of sessions, and 
 justices' courts, 461. — Supreme court organized, 1691 ; courts of 
 exchequer and admiralty, 462. 
 
 Growth of the Colony, 463-470. 
 
 Statement of population at different periods, 463-469. — Conclusion, 
 469, 470. 
 
 CHAPTER II. 
 
 The First Constitution. 
 
 First Constitution possesses peculiar interest, 471. — First convention; 
 last colonial assembly, 1769 ; committees and local congresses ; Tory 
 sentiment predominant in assembly, with strong patriot opposition, 
 472. — Resolutions proposed by patriots, 473-475. — Committee of 
 Fifty-one; recommends general congress, 475.^ — Committee of 
 Sixty, — committee of inspection; Provincial Convention, April 20, 
 177s; Committee of One Hundred, — ^provisional war committee; 
 First Provincial Congress, May 22, 1775, 476. — Second Provincial 
 Congress, December 6, 1775 ; Third Provincial Congress, May 22, 
 
 1776, 477. — Continental Congress recommends that colonies adopt 
 forms of government, 478. — Third Provincial Congress doubts its 
 own power to frame a new form of government, 479. — Recom- 
 mends new provincial congress, 481. — Fourth Provincial Congress, 
 July 9, 1776; ratifies Declaration of Independence; becomes 
 
 First Constitutional Convention, 484. 
 
 Convention exercises governmental powers, 487. 
 
 Making a Constitution, 490-559. 
 
 Committee appointed to frame Constitution, 490. — Convention ap- 
 points day of fasting, humiliation, and prayer; causes of delay in 
 preparing Constitution, 491. — Convention becomes a committee of 
 safety, October 15, 1776, 493.— Constitution presented, March 12, 
 
 1777, 494-— Who was author of first Constitution? 495. — Drafts of 
 Constitution, 498— Discussion of Constitution, 501-556.— Constitu- 
 tion adopted Sunday, April 20, 1777, 556.— Constitution took effect 
 
 without submission to people ; Constitution promulgated at Kings- 
 ton, April 22, 1777, SS8.— Opinions concerning Constitution, 559. 
 
 Government Established, 559-595. 
 
 Convention chooses state and local officers, 560.— Ordinance of 8th of 
 
Contents. xvii 
 
 May, 1777, 562. — Convention dissolved, May 13, 1777; Council of 
 Safety meets. May 14, 1777, 571. — Council orders election of gov- 
 ernor, lieutenant governor, and members of legislature; elections 
 held in June, 1777; George Clinton elected governor and also 
 lieutenant governor; resigns latter office, 572. — Governor Clinton 
 takes oath of office, July 30, 1777 ; first senate organized, September 
 9, first assembly, September 10, 1777, 573. — Parliamentary custom 
 followed in opening legislature, 576. — Hadden's Case, judges deny 
 writ of habeas corpus ; assembly investigates matter, 577. — Reasons 
 assigned by judges; judges exonerated, 578. — Legislature resolves 
 itself into a convention and appoints new Council of Safety, 1777, 
 582. — A revolutionary council under a written constitution, 583. — 
 Kingston destroyed by British, October 16, 1777; legislature meets 
 at Poughkeepsie, January, 1778, 585. — Proceedings of Council of 
 Safety ratified by legislature, 586. — Legislature of 1780 passes bill 
 for Council of Safety ; vetoed by Council of Revision, 588. — Begin- 
 ning of regular constitutional government ; comments on first Con- 
 stitution, 589. — Colonial government continued under constitu- 
 tional forms ; summary of first Constitution, 590. 
 
 CHAPTER III. 
 The Convention of 1801. 
 
 Origin of Convention; Council of Appointment, 596. — ^John Jay's 
 opinion of its powers, 597.— Construction given by first Conven- 
 tion; procedure in council, 598- — ^Legislative construction of coun- 
 cil's powers ; Governor claims exclusive right of nomination, 599. — 
 Governor Jay calls legislature's attention to the question of power, 
 1796 ; controversy between Governor and senate members of coun- 
 cil, 1801, 600. — Governor Jay's special message in relation to 
 council, 601. — Members of council claim concurrent right of nom- 
 ination, 602. — Resolutions of legislature, 662-605. — ^Legislature rec- 
 ommends convention; Convention chosen, 603. — Governor Jay 
 recommends reorganization of legislature, November 1800, 607. — 
 Convention authorized to reconstruct legislature and construe 
 powers of Council of Appointment, 606. — Meeting of Convention, 
 608. — Result of Convention's labors; change in legislature; senate 
 members of council given concurrent right of nomination, 610. — 
 Comment on council, 611. 
 
xxviii Contents. 
 
 CHAPTER IV. 
 
 The Convention of 1821. 
 
 Modem methods of amending Constitution; first Constitution con- 
 tained no provision for its own amendment, 613. — Sketch of prop- 
 ositions to amend Constitution, 614-616.— Governor De Witt Clin- 
 ton's suggestions, 1820, 616. — Various propositions considered, 619. 
 — ^Legislature passes convention bill, November 20, 1820, 623. — 
 Bill vetoed by Council of Revision; Chancellor Kent's opinion, 
 624. — ^Assembly committee criticizes veto, 626. — New act recom- 
 mending convention, March, 1821, 628. — Convention chosen; Con- 
 vention vested with general powers ; sketch of Convention, 629. 
 
 Second Constitution, 637-640. 
 
 First Constitution substantially continued in second; legislature, 638. 
 — State census every ten years; legislative representation changed 
 from electors to inhabitants; veto power, 639. — Political year, 640. 
 
 Suffrage, 640-668. 
 
 Historical sketch, 640.— Judge Piatt's views, 641. — Chancellor Kent 
 opposes extension of right of suffrage, 643. — Erastus Root's opin- 
 ion, 649. — Martin Van Buren favors extension ; proposition against 
 extension rejected, 651. — Colored vote, 652. — Slavery in New York; 
 colonial experience, 653.— Manumission of slaves, act of 1785; im- 
 portation aijd exportation of slaves restricted, 1801 ; abolition act 
 of 1817, 657. — New York's emancipation day, July 4, 1827; two 
 centuries of slavery in New York, 658. — Governor De Witt Clin- 
 ton's remarks on Missouri compromise; legislature opposes ad- 
 mission of new slave states, 659. — ^Debate on proposition to grant 
 equal suffrage to colored persons, 661. — Chief Justice Spencer's 
 statement of Convention's powers, 662. — General qualifications of 
 voters, 666. — Elections by ballot; sketch of early statutes, 667. 
 
 The Executive, 668-671. 
 
 The Executive, 668-671.— Pardoning power, 669.— Governor's speech 
 at opening of legislature discontinued; message substituted, 670. 
 
 Officers, 671-674. 
 
 Elective ofiicers; appointive officers, 671.— Tenure, 672.— Impeach- 
 ment; removal, 673. 
 
 The Judiciary, 674-690. 
 
 Importance of judicial system, 674.— Motives which produced changes 
 
Contents. xxix 
 
 in judiciary; supreme court, 675. — Discussion of judiciary article; 
 Mr. Munro's explanation of article; Erastus Root's amendment, 
 proposed abolition of court of chancery, 679. — Chancellor Kent's 
 views, 680. — Summary of judiciary article, 687. — Four important 
 changes; supreme court reorganized; number of judges increased 
 to eleven; tenure of local judges limited; judges prohibited from 
 becoming candidates for other offices, 688. — Legislature creates 
 eight judicial circuits, 689. — Chancellor Kent's retirement on 
 reaching age limit, July 31, 1823, 690. 
 
 Canals, 690-715. 
 
 Historical sketch; second Constitution recognizes canal ptJicy, 690. — 
 Colonial suggestions concerning canals, 691. — Philip Schuyler's sug- 
 gestion, canal connecting Hudson river and Lake Champlain, 1776, 
 692. — Gouvemeur Morris's prediction, 1777; Washington's tour, 
 1783, 693.— The CoUes petitions, 1784, 1785, 1786, 694.— Barlow's 
 poem, "The Vision of Columbus," 1787, 695. — ^Watson's suggestion, 
 1788; legislature directs examination of proposed canal routes, 
 1791, 696. — Lock navigation companies incorporated, 1792, 697. — 
 Governor George Clinton recommends state aid ; state aid granted 
 to navigation company, 1796; Western Navigation Company com- 
 pletes sections of canal, 1796, 1797; Niagara Canal Company 
 incorporated, 1798, 698. — Morris suggests Erie canal, 1801, 1802, 
 699. — President Jefferson recommends Federal construction of 
 roads and canals, 1806; United States Senate resolution concern- 
 ing canals, 1807, 700. — Forman's canal resolution, assembly, 1808, 
 701. — Legislature directs canal survey from Hudson river to Lake 
 Erie; Gallatin's report, 1808; canal commission appointed, 1810, 
 702. — Commission's report, 1811 ; De Witt Clinton's canal law, 
 181 1, 703. — De Witt Clinton and Gouvemeur Morris offer canal 
 to United States; Congress declines to engage in canal project, 
 704. — Legislature adopts definite canal policy, 1812; Seneca Lock 
 Navigation Company incorporated, 1813, 705. — Memorial to legis- 
 lature, 1816; Governor Tompkins recommends canals, 1816, 706. — 
 Legislature directs construction of canals, 1817, 707. — Work on 
 canal begun at Rome, July 4, 1817, 708. — Chittenengo Canal Com- 
 pany incorporated, 1818, 709. — ^Albany canal basin opened, Octo- 
 ber 8, 1823, first canal boat passes into Hudson river, 712. — Erie 
 canal completed, October 26, 1825 ; canal discussion in Convention 
 of 1821, 713. — Canal provisions in new Constitution, 715. 
 
 Bill of Rights, 715-743- 
 
 Blackstone's definition, Kent's addition, 715.— Magna Charta, 39th 
 
XXX Contents. 
 
 and 40th articles, 1215; statute 28 Edward III., I3S4; habeas cor- 
 pus and trial by jury, 716.— Darnel's Case; Petition of Rights, 
 .1628, 717.— Cromwell's protectorate, 719.— Habeas corpus act, 31 
 Charles II., 1679; New York Charter of Liberties and Privileges, 
 1683, 720.— English Bill of Rights, 1689, 723.— Act of Settlement, 
 1700, 725. — England's constitutional convention; New York inher- 
 ited English Bill of Rights, 726.— First Constitution, 1777. 727- — 
 New York statutory Bill of Rights, 1787, 728. — Federal Constitu- 
 tion, 1787; amendments of 1789, 732. — New York Constitution of 
 1821, 733.— New York Bill of Rights, 1905, 734. 
 
 Council of Revision, 743-749. 
 
 Four members of council in the Convention, 743. — ^Judges defend 
 council; summary of council's work; Street's history of council, 
 744. — Differences between legislature and council ; apparent ground 
 of hostility to council, 745. — Council most permanent part of state 
 government, 746. — Value of judicial aid in determining constitu- 
 tionality of proposed legislation, 747. 
 
 Council of Appointment, 749, 750. 
 
 Convention decides to abolish council; various substitutes proposed, 
 749. — Senate vested with power of confirmation in certain cases, 
 750- 
 
 Miscellaneous Provisions, 750, 751. 
 
 Common school fund; lotteries prohibited; Indian contracts; com- 
 mon and colonial law; royal grants, 750. — Amending Constitution; 
 when new Constitution to take effect, 751. 
 
 Conclusion, 751-756. 
 
 Constitution submitted as a whole, 751. — Comments by Tompkins, 
 DeWitt Clinton, Kent, and Yates, 752-755. 
 
INTRODUCTION. 
 
 The Constitutions of New York. 
 
 The sources of our constitutional history are in 
 old-world institutions. The principal and most fa- 
 miliar features of our Constitutions, so far as they are 
 fundamental in character, are, in the main, institu- 
 tions of the Netherlands or of England, transplanted 
 to the new world, and modified to adapt them to 
 changes incident to colonial conditions. The pow- 
 ers, customs, and traditions of organized society, de- 
 veloping through centuries of fluctuating experience, 
 have been crystallized in our written Constitutions. 
 An examination of our history from the beginning of 
 the colonial period clearly demonstrates the proposi- 
 tion that our Constitution is not a creation, but a 
 growth. Long before it found expression in written 
 forms embodying a statement of principles deemed 
 essential to organized government, constitutional 
 liberty was slowly developing out of the daily needs 
 and experiences of society. It is a natural incident 
 of colonization that the colonists carry with them to 
 their new home the social customs and forms of gov- 
 ernment with which they are familiar; and if the 
 colony goes with the sanction or under the patronage 
 of the home government, that government imposes 
 its own authority on the new community, and seeks 
 to foster there the customs and principles which have 
 
 [3] 
 
4 Constitutional History of New York. 
 
 molded its own structure. These characteristics 
 have marked colonization from the beginning of his- 
 tory; and the settlement of New York by the Dutch 
 and English immigrants was no exception to the 
 general rule. Dutchmen were Dutchmen still and 
 Englishmen were Englishmen still after they crossed 
 the ocean and began laying the foundations of a new 
 society in a new world. This society was not at first 
 new, but the settlers were a long distance from home, 
 and communication with the old world was not easy 
 or frequent ; hence, they were compelled to rely upon 
 their own resources for protection against the ad- 
 verse forces, seen and unseen, with which they were 
 surrounded. This situation naturally produced in- 
 dependence in opinion and in conduct; and while they 
 were loyal to the home government, they protested 
 against the constraints which that government some- 
 times imposed upon the colonies, and against a too 
 parental administration. They knew they were free- 
 men and entitled to the rights of freemen in the 
 countries from which they came, and they insisted 
 upon the same rights in their new home ; consistently 
 resisted all. attempts to restrict those rights; and per- 
 sistently protested against the exercise of arbitrary 
 power by governors who were sent out to administer 
 colonial affairs. They rejected any form of personal 
 government in a community composed of freemen. 
 Out of these general conditions, modified from time 
 to time to meet peculiar needs, came the customs, 
 policies, statutes, and ordinances ^Vhich together 
 made the Constitution of the colony. This Consti- 
 tution was always subject to some modification at 
 the instance of the home government; but, by the 
 middle of the colonial period, the general principles 
 of constitutional government now deemed so essen- 
 
Introduction. 5 
 
 tial — namely, a legislative, an executive, and a judi- 
 cial department, each substantially independent of 
 the other — had become firmly established, and after 
 the revival of the assembly, in 1691, no question 
 seems to have been raised as to the perpetuity or 
 general characteristics of these features of colonial 
 government. 
 
 Our colonial history is naturally divided into three 
 periods, of unequal length : 
 
 First, the original Dutch period, from the discovery 
 of Manhattan, by Henry Hudson, in 1609, to the 
 English conquest, in 1664, — ^fifty-five years. 
 
 Second, the period covered by the proprietary gov- 
 ernment of the Duke of York, — from 1664 to 1685, — 
 virhen the Duke became King. This was practically 
 tw^enty-one years, though there v\^as an interruption 
 of nearly a year during parts of the years 1673 and 
 1674, when the Dutch regained and held possession 
 of the colony. 
 
 Third, the period during which New York was a 
 royal province, beginning on the accession of the 
 Duke of York to the throne of England, in February, 
 1685, and continuing until the Revolution. This 
 period closed with 1775, and therefore covers ninety- 
 one years. 
 
 These periods will now be considered in their 
 order.. 
 
 Early Dutch Charters. 
 
 These charters sometimes conferred mere trading 
 privileges, without any governmental features, but 
 in some instances the recipients of the charters were 
 vested with large and even extraordinary powers of 
 government, and they became governmental agen- 
 cies in the settlement of the colony and the adminis- 
 
6 Constitutional History of New York. 
 
 tration of its affairs. The powers of government 
 thus expressed in charters were of the same general 
 character as the powers expressed in modern con- 
 stitutions, and related to all the departments into 
 which a government is now usually divided. These 
 charters, therefore, became, in a very practical sense, 
 the Constitutions of the colony. 
 
 DUTCH WEST INDIA COMPANY, 1 62 1. 
 
 The first and most conspicuous instance of this class 
 during the Dutch period was the charter granted to the 
 Dutch West India Company, which bore date the 3d of 
 June, 1621, and was to be in effect from the first day 
 of the following July. The charter created primarily 
 a business corporation for the purpose, as expressed, 
 of promoting "navigation, trade, and commerce" in 
 Africa, the West Indies, and parts of America, in- 
 cluding what is now New York. It established a 
 commercial monopoly for twenty-four years. But 
 the charter went far beyond the ordinary necessities 
 of a business corporation. It was the repository of 
 political power, and became, in distant lands, the 
 direct representative of the States General of the 
 United Netherlands. This delegation of authority 
 was expressed in the following provision: 
 
 "That moreover, the aforesaid company may, in 
 Our name and authority, within the limits herein be- 
 fore prescribed, make contracts, engagements, and 
 alliances, with the princes and natives of the coun- 
 tries comprehended therein, and also build any forts 
 and fortifications there, to appoint and discharge 
 governors, people for war, and officers of justice, and 
 other public officers, for the preservation of the 
 places, keeping good order, police, and justice, and 
 in like manner for the promoting of trade ; and again, 
 
Introduction. 7 
 
 others in their places to put, as they, from the situa- 
 tion of their affairs, shall see fit; moreover, they 
 may advance the peopling of fruitful and unset- 
 tled parts, and do all that the service of these 
 countries, and the profit and increase of trade, shall 
 require; and the company shall successively com- 
 municate and transmit to Us such contracts and al- 
 liances as they shall have made with the aforesaid 
 princes and nations; and likewise the situations of 
 the fortresses, fortifications, and settlements by them 
 taken." 
 
 The authority thus conferred was not, however, 
 exclusive, but the company's acts in the exercise of 
 it were subject to approval by the home government. 
 The charter proceeds : 
 
 "Saving, that they having chosen a governor-in- 
 chief, and prepared instructions for him, they shall 
 be approved, and a commission given by Us: And 
 that further, such governor-in-chief, as well as other 
 deputy governors, commanders, and officers, shall be 
 held to take an oath of allegiance to Us and also to 
 the company." 
 
 The charter further provides: 
 
 "And if it should be necessary, for the establish- 
 ment, security, and defense of this trade, to take any 
 troops with them. We will, according to the consti- 
 tution of this country, and the situation of affairs, 
 furnish the said company with such troops, provided 
 they be paid and supported by the company. 
 
 "Which troops, besides the oath already taken to 
 Us and to his Excellency, shall swear to obey the 
 commands of the said company, and to endeavor to 
 promote their interest to the utmost of their ability." 
 
 The government agreed to protect the company, 
 furnish it a subsidy of one million guilders, and pro- 
 
8 Constitutional History of New York. 
 
 vide naval assistance in case of need; it also guaran- 
 teed to the company the undisturbed enjoyment of 
 the "privileges, freedoms, and exemptions" conferred 
 by the charter. 
 
 Controversies having arisen between the English 
 and the Dutch as to the right to make settlements in 
 Connecticut and on Long Island, the States General,/ 
 on the 23d of January, 1664, — only a few months be-' 
 fore the English conquest of New York, — issued aft 
 order describing and confirming the charter granted 
 to the Dutch West India Company in 162 1, and de- 
 claring that, by the charter, the company "was and 
 is still empowered to establish colonies and settle- 
 ments on lands unoccupied by others," within the 
 limits of the territory assigned to it. 
 
 FREEDOMS AND EXEMPTIONS, 1 629. 
 
 The Assembly of XIX. issued, in June, 1629, a charter 
 of "Freedoms and Exemptions," which was ratified by 
 the States General, conferring special privileges and 
 powers on "all patroons, masters, or private persons who 
 will plant colonies in New Netherland." It contained 
 numerous details relative to colonization, but which 
 are not especially pertinent here. The patroons, 
 within the territory assigned to them, were vested 
 "with the chief command and lower jurisdictions," 
 and it was further provided that, "in case any one 
 should, in time, prosper so much as to found one or 
 more cities, he shall have power and authority to 
 establish officers and magistrates there, and to make 
 use of the title of his colony, according to his pleasure 
 and to the quality of the persons;" but from "all 
 judgments given by the courts of the patroons for 
 
Introduction. 9 
 
 upwards of fifty guilders," an appeal was allowed "to 
 the company's commander and council in New Neth- 
 erland." Settlers were to receive "instructions in 
 order that they may be ruled and governed conform- 
 able to the rule of government made, or to be made, 
 by the Board of Nineteen, as well in the political as 
 in the judicial government." The charter also con- 
 tained provisions for the encouragement of religion 
 and education. 
 
 FREEDOMS AND EXEMPTIONS^ 164O. 
 
 In July, 1640, a new charter of "Freedoms and Ex- 
 emptions" was granted, which contained numerous pro- 
 visions not found in the original charter of 1629. By the 
 new charter the patroons were vested with "high, low, 
 and middle jurisdiction." Municipal authority was 
 specified to be exercised in "towns," instead of in 
 "cities," as provided by the original charter, with the 
 important addition that if settlements grew to such 
 an extent "as to be accounted towns, villages, or 
 cities, the company shall give orders respecting the 
 subaltern government, magistrates, and ministers of 
 justice, who shall be nominated by the said towns 
 and villages in a triple number of the best qualified, 
 from which a choice and selection is to be made by 
 the governor and council; and those shall determine 
 all questions and suits within their district." Thus, 
 the company reserved to itself a large measure of 
 municipal supervision. An appeal from local courts 
 to the governor and council was allowed from "de- 
 finitive judgments" for an amount "exceeding one 
 hundred guilders, or from such as entail infamy, also 
 from all sentences pronounced in matters criminal, 
 
10 Constitutional History of New York. 
 
 on ordinary prosecution, conformable to the custom 
 of the Netherland. 
 
 There was no religious toleration in this charter; 
 on the contrary, it provided that "no other religion 
 shall be publicly admitted in New Netherland except 
 the Reformed, as it is at present preached and prac- 
 tised by public authority in the United Netherlands ; 
 and for this purpose the company shall provide and 
 maintain good and suitable preachers, schoolmasters, 
 and comforters of the sick." A liberal policy on this 
 subject had been suggested in the articles relating to 
 colonization, proposed in 1638, from which I have 
 quoted in the chapter on the Colonial Period, but 
 which were not approved by the States General. 
 One article provided for the established church, but 
 expressly declared that it was not intended as a re- 
 straint upon the conscience of any person. 
 
 Each settlement on a river, bay, or island was per- 
 mitted to designate a deputy, once in two years, who 
 should annually report to the governor and council, 
 and assist them in promoting the interests of such 
 settlement. This was home rule. The company re- 
 served to itself the right of mintage, laying out high- 
 ways, "erecting forts, making war and peace, to- 
 gether with all wildernesses, founding of cities, 
 towns, and churches, retaining the supreme author- 
 ity, sovereignty, and supremacy, the interpretation of 
 all obscurity which may arise out of this grant, with 
 such understanding, however, that nothing herein 
 contained shall alter or diminish what has been 
 granted heretofore to the patroons in regard to high, 
 middle, and low jurisdiction." 
 
 The comprehensive authority vested in the Dutch 
 West India Company was clearly expressed in the 
 following provisions relating to the powers of the gov- 
 
Introduction 1 1 
 
 emor and council, in whom were combined the execu- 
 tive, legislative, and judicial departments of the colonial 
 government : 
 
 "The Company shall, accordingly, appoint and keep 
 there a Governor, competent Councillors, Officers 
 and other Ministers of Justice for the protection of 
 the good and the punishment of the wicked; which 
 Governor and Councillors, who are now, or may be 
 hereafter, appointed by the Company, shall take cog- 
 nizance, in the first instance, of matters appertaining 
 to the freedom, supremacy, domain, finances and 
 rights of the General West India Company; of com- 
 plaints which any one (whether stranger, neighbor, 
 or inhabitant of the aforesaid country) may make in 
 case of privilege, innovation, desuetude, customs, 
 usages, laws or pedigrees ; declare the same corrupt 
 or abolish them as bad, if circumstances so demand; 
 of the cases of minor children, widows, orphans, and 
 other unfortunate persons, regarding whom com- 
 plaint shall first be made to the Council holding pre- 
 rogative jurisdiction in order to obtain justice there; 
 of all contracts or obligations; of matters pertaining 
 to possession of benefices, fiefs, cases of Icbsob majes- 
 tatis, of religion and all criminal matters and excesses 
 prescribed and unchallenged, and all persons, by pre- 
 vention, may receive acquittance from matters there 
 complained of; and generally take cognizance of, and 
 administer lav\r and justice in, all cases appertaining 
 to the supremacy of the Company." 
 
 The patroon system established by the foregoing char- 
 ters of "Freedoms and Exemptions" had a marked but 
 not always beneficial influence in the development of 
 New York. Some aspects of this peculiar land system 
 are considered in the preliminary article on Agricultural 
 
12 
 
 Constitutional History of New York. 
 
 Leases, in the chapter on the Third Constitution, in the 
 second volume of this work. 
 
 FREEDOMS AND EXEMPTIONS^ l6SO. 
 
 In May, 1650, a revised charter of "Freedoms and 
 Exemptions" was approved by the States General. In 
 most respects it is identical with the charter of 1640, and 
 the additions do not introduce any changes of principle. 
 
 Dutch Directors and Councils. 
 
 The chief executive officer of the colony during the 
 Dutch period was officially known as the director, but 
 was sometimes designated as the director general, the 
 commander, or the governor. He was vested with ex- 
 traordinary powers, and might, and often did, exercise 
 arbitrary authority, independent of the council, with 
 which he was supposed to act. It is a curious and note- 
 worthy fact that this colonial officer should have been 
 clothed with such irresponsible authority by a govern- 
 ment which would not have tolerated it for a moment in 
 its own country. 
 
 I have not had access to the commissions issued to the 
 earlier Dutch governors. The only commission I have 
 been able to find is the one issued to Peter Stuyvesant 
 on the 28th of July, 1646. It was issued by the States 
 General at the request of the Dutch West India Company. 
 Only about twenty years had elapsed since the beginning 
 of organized government in the colony, under Peter 
 Minuit, who came to New Netherland as director in the 
 spring of 1626, though he was not the first who bore 
 this title. We may probably, therefore, reasonably as- 
 
Introduction. 13 
 
 sume that Stuyvesant's commission was substantially in 
 the form used in previous cases. Stujrvesant was the last 
 of the Dutch governors, and held office through a period 
 of eighteen years, until the English conquest, in 1664. 
 His administration, therefore, covers nearly half of the 
 period of actual Dutch administration in the colony. 
 The commission appointed Stuyvesant director in New 
 Netherland and other countries which need not here be 
 named. His general powers and duties were expressed 
 in the provision that he was "to administer, with the 
 council as well now as hereafter appointed with him, the 
 said office of director, both on water and on land, and 
 in said quality, to attend carefully to the advancement, 
 promotion, and preservation of friendship, alliances, 
 trade, and commerce; to direct all matters appertaining 
 to traffic and war, and to maintain, in all things there, 
 good order for the service of the United Netherlands and 
 the General West India Company ; to establish regularity 
 for the safeguard of the places and forts therein; to 
 administer law and justice, as well civil as criminal; and, 
 moreover, to perform all that concerns his office and 
 duties in accordance with the charter, and the general 
 and particular instructions herewith given, and to be 
 hereafter given him." 
 
 Dr. O'Callaghan, in his History of New Netherland, 
 1846, vol. I, p. 244, thus summarizes the director's 
 powers : 
 
 "Though a servant himself of the West India Com- 
 pany, nominated by the Assembly of the XIX., and com- 
 missioned by the States General, the Director was in 
 fact absolute in New Netherland, and beyond all control 
 within the colony. As representative of the sovereign 
 authority, he extinguished Indian titles to land, and 
 sanctioned all purchases from the aborigines. No con- 
 tracts, engagements, transfers, bargains, nor sales were 
 
14 Constitutional History of New York. 
 
 valid, except such as were passed before and written by 
 his secretary. He erected courts; appointed, either 
 directly or indirectly, all public officers, except such as 
 came out with commissions from Holland; made laws; 
 issued ordinances; incorporated towns; imposed taxes; 
 levied fines ; inflicted penalties ; and could affect the value 
 of any man's property at a moment, by raising or lower- 
 ing the value of wampum, which constituted the chief 
 currency at this period of the country. He not only 
 acted in an executive and legislative, but also in a judi- 
 cial, capacity. He decided all civil and criminal ques- 
 tions without the intervention of a jury, such an insti- 
 tution being unknown in the province; and before him 
 were brought all appeals from inferior courts. When 
 we add to this the fact that all such municipal regula- 
 tions as circumstances demanded emanated from him 
 and his council, we cannot be surprised to learn that 
 many things were left undone which ought to be attended 
 to ; that many things were performed which might better 
 have been left undone; and that dissatisfaction neces- 
 sarily prevailed among the sturdy sons of that republic, 
 who ever evinced a lively and honorable jealousy of 
 despotic power." 
 
 The council was, at least in theory, a constituent part 
 of the government. The governor was required to act 
 with the council, but he seems to have ignored its advice 
 or authority in many cases and acted on his own judg- 
 ment, sometimes in an arbitrary manner. This subject is 
 considered in several aspects in the chapter on the Co- 
 lonial Period. The actual relation of the council to the 
 government, as viewed by many citizens during Stuy- 
 vesant's administration, is clearly pointed out in notes 
 to a remonstrance dated December ii, 1653, presented 
 to tlie Director by a convention of delegates from dif- 
 ferent parts of the colony, which met in New Amsterdam 
 
Introduction. 15 
 
 on the loth to consider various aspects of colonial af- 
 fairs. Explaining the charge in the remonstrance that 
 there was danger of the establishment of an arbitrary 
 government, the notes state that "the entire government 
 of this country is directed and controlled exclusively ac- 
 cording to the pleasure and caprice of Director Stuy- 
 vesant or one or two of his favorite sycophants ; in divers 
 cases decisions were given without the knowledge, yea, 
 frequently without summoning, his adjoined councilors, 
 who have no further power to decide except as the 
 Director permits them, his will being a law absolute, 
 whereby everything is controlled." Director Stuyvesant 
 replied to the remonstrance on the 12th, treating the 
 charge of establishing an arbitrary government as ap- 
 plicable to the council as well as to himself, and asserting 
 his and their authority under the commission and orders 
 of their superiors. The notes or specifications, amplify- 
 ing the remonstrance, bear date the 30th of December, 
 eighteen days after the Director's reply to a remonstrance 
 which did not specifically charge him with ignoring the 
 council. This charge seems to be sustained by the facts 
 of history, but in this arbitrary exercise of power Stuy- 
 vesant was not the first offender. He followed in the 
 footsteps of his predecessors in office, all of whom ap- 
 parently regarded the council as an encumbrance, and 
 ignored it as much as possible. 
 
 In the powers delegated to the governor and council, 
 which powers were, at least in form, executive, legisla- 
 tive, and judicial, we find the original of the general 
 division of power among the three departments of the 
 state government under the Constitution. The powers 
 thus delegated to a few men seem and were extremely 
 arbitrary. The States General had undertaken the task 
 of settling Holland's part of the new world by means of 
 a great corporation, which was made a governmental 
 
i6 Constitutional History of New York. 
 
 agency. It did not seem practicable to transplant to 
 America all the political rights and institutions which 
 were enjoyed at home, and the situation was doubtless 
 influenced by the fact that the primary object of the 
 company was commercial rather than political; but the 
 two objects were necessarily combined, because com- 
 mercial growth would not be practicable without inhabi- 
 tants in sympathy with the general purposes of the cor- 
 poration, and loyal to home institutions; therefore the 
 company was given authority to establish government 
 in all its aspects, and to administer public affairs sub- 
 stantially in the same manner and to the same extent as 
 the States General might have done if personally present. 
 However objectionable this method of governing a new 
 colony may now seem to us, I think it is not too much 
 to say that, at least in theory, it was practicable and 
 suited to existing conditions. There was government 
 enough, and if it had been fairly administered, in the 
 spirit with which it was evidently established, the colony 
 might have been spared many painful experiences, and 
 its growth and development would not have been re- 
 tarded, as now seems clear, by the unfortunate policies 
 adopted and enforced by the officers sent out to admin- 
 ister its affairs. The council was evidently intended to 
 be a co-ordinate branch of government ; and while it did 
 not reach the fulfilment of its mission during the earlier 
 years of its existence, it is worth while to remember that 
 this part of the Dutch colonial administration was con- 
 tinued without material change under English rule, and 
 soon came to occupy a double relation to the govern- 
 ment; namely, as the executive council, associated with 
 the governor in ordinary affairs, and also as a part of 
 the colonial legislature, developing into the senate under 
 the state Constitution, 
 
Introduction. 17 
 
 The Duke of York 
 
 The evolution of colonial affairs now brings us to the 
 proprietary government of the Duke of York, and a 
 change of sovereignty of the Netherlands to England. 
 We have little to do here with the controversies between 
 the two nations which led to this result, and our interest 
 in it lies in the fact that it changed the course of con- 
 stitutional development in the colony. The conquest of 
 New Netherlands by the English, in 1664, was only the 
 culmination of a dispute which had continued many 
 years, and the final consummation of ancient English 
 claims to the territory. England's claims reach back as 
 far as 1498, when Jean and Sebastian Cabot sailed along 
 the Atlantic coast and claimed for England all the land 
 they saw. But this claim lay dormant many years, 
 awaiting the time for colonization, and more than a cen- 
 tury passed before the world saw English settlements 
 firmly established in America. 
 
 Omitting many details, suffice it to say that on the loth 
 of April, 1606, King James I. of England granted a 
 charter to Sir Thomas Gates and others, authorizing 
 them to "deduce a colony . . . into that part of 
 America commonly called Virginia, and other parts and 
 territories in America, either appertaining unto us, or 
 which are not now actually possessed by any Christian 
 Prince or People" all along the sea coasts, between the 
 34th and 45th degrees of north latitude, including the 
 mainland and islands within one hundred miles. This 
 embraced practically all the coast between Cape Fear 
 and Nova Scotia. The patentees were divided into two 
 companies; one, known as the London Company, was 
 authorized to make settlements between the 34th and 
 41st degrees of latitude; and the second, known as the 
 Plymouth Company, was authorized to make settlements 
 Vol. I. Const. Hist.— ^. 
 
i8 Constitutional History of New York. 
 
 between the 38th and 45th degrees. It will be observed 
 that the two grants overlapped each other three degrees, 
 between the 38th and 41st degrees, but the charter con- 
 tained provisions intended to prevent any collision be- 
 tween the two companies. The general charter embraced 
 territory now within the state of New York. 
 
 Captain Henry Hudson's discovery of New York Bay 
 in September, 1609, his exploration of the river which 
 now bears his name, and his examination of adjacent 
 lands, was the foundation for the Dutch claim to what 
 was afterwards known as New Netherland. This coun- 
 try was within the territorial limits embraced in the 
 Virginia charter granted by King James, but it was not 
 occupied by Europeans, and was therefore said to be 
 within the exception specified in the Virginia charter, 
 namely, that it was not then actually "possessed by any 
 Christian Prince or People." The English consistently 
 resisted this interpretation, and apparently on every oc- 
 casion asserted English dominion over this part of the 
 Atlantic coast, under the charter of 1606. Thus we are 
 told that Captain Argal of Virginia visited Manhattan 
 Island in November, 161 3, found there a Dutch settle- 
 ment of four houses, and compelled Hendrick Corstiaen- 
 sen, the leader of the settlement, to acknowledge the 
 sovereignty of the King of England and of the governor 
 of Virginia, and also exacted from him an agreement to 
 pay tribute. 
 
 Again, in 1621, after the incorporation of the Dutch 
 West India Company and other active preparation in 
 Holland for the colonization of the territory about New 
 York Bay, several members of the Plymouth Company 
 presented a remonstrance to the English government 
 against this projected Dutch movement, whereupon the 
 King directed the English ambassador to the Nether- 
 lands to protest against it, alleging that English sover- 
 
Introduction. 19 
 
 eigns had, "for many years since, taken possession of 
 the whole precinct, and inhabited some parts of the north 
 of Virginia, by us called New England, of all which 
 countries his Majesty hath, in like manner, some years 
 since, by Patent, granted the quiet and full possession 
 unto particular persons." This protest seems to have 
 produced no effect, for, as already shown herein, 
 Dutch colonization was continued and encouraged, and 
 a permanent government established in New Netherland. 
 The controversy was renewed in 1632, in consequence of 
 the detention in England of a Dutch ship trading with 
 New Netherland. At this time it was claimed by the 
 Dutch West India Company that by reason of lapses or 
 otherwise the English had lost the right, if they ever 
 possessed it, to the territory between the 39th and 41st 
 degrees of latitude. The English denied this, claiming 
 the territory "by first discovery, occupation, and the pos- 
 session which they have taken thereof, and by the con- 
 cessions and letters patent they have had from our Sover- 
 eigns, who were, for the above reasons, the true and 
 legitimate proprietors thereof in those parts." 
 
 The English continued to assert their claims, and in 
 vindication thereof encouraged English settlements in 
 what is now Connecticut, and on the eastern end of Long 
 Island. The Dutch regarded these settlements as en- 
 croachments on their territory, and protested against 
 them. There were frequent negotiations by colonial 
 authorities relating to boundaries, but there is no evi- 
 dence that the English government ever relinquished or 
 seriously modified its claim to the territory of New 
 Netherland. On the contrary, this claim was asserted 
 in the most positive manner by the charter granted on 
 the I2th of March, 1664, by King Charles II. to his 
 brother James, Duke of York. This charter included 
 the territory then occupied and claimed by the Dutch 
 
20 Constitutional History of New York. 
 
 within the limits of the present state of New York. It 
 was a conveyance to the Duke, his heirs and assigns, of 
 the territory described therein, to be held to his and their 
 "only proper use and behoofe," in "free and common 
 soccage," with an annual tribute of forty beaver skins. 
 
 POWERS CONFERRED BY THE CHARTER. 
 
 The Duke is described in one of the documents of the 
 period as the first proprietor of New York. The charter 
 vested in him what is known as a proprietary government. 
 It granted to him, "his heirs, Deputyes, Agents, Commis- 
 sioners and assigns . . . full and absolute power and 
 Authority to Correct, punish, pardon, Governe and Rule 
 all such the Subjects of Us Our Heires and Successors, 
 as shall from time to time adventure themselves into any 
 the parts or places aforesaid, or that shall or doe at any 
 time hereafter, Inhabite within the same, according to 
 such Lawes, Orders, Ordinances, Directions, and Instru- 
 ments, as by Our said Dearest Brother, or his Assignes, 
 shall be established, And in defect thereof in Cases of 
 necessity, according to the good discretions of his Dep- 
 utyes, Commissioners, Officers or Assignes respectively, 
 as well in all Causes and matters Capitall and Criminall, 
 as Civill, both Marine and others, Soe alwayes, as the 
 said Statutes, Ordinances & proceedings be not contrary 
 to, but as neare as conveniently may be Agreeable to the 
 Lawes Statutes & Government of this Our Realme of 
 England." 
 
 Appeal. — "And Saving and reserving to us. Our heirs 
 and Successors the receiving hearing and determining 
 of the Appeale and Appeales of all or any person or 
 persons, of, in, or belonging to the Territoryes or Islands 
 
Introduction. 2i 
 
 aforesaid, in or touching any Judgment or Sentence to 
 be there made or given." 
 
 Officers. — "And further, that it shall and may be 
 Lawful], to & for our said Dearest Brother, his heires 
 and Assignes by these presents, from time to time, to 
 nominate, make, constitute, ordaine and confirme by 
 such name or names, Stile, or Stiles as to him, or them 
 shall seeme good, and likewise to revoke discharge, 
 Change and Alter, as well all and Singular Governors 
 Officers & Ministers which hereafter shall be by him or 
 them, thought fitt and needfull to be made or used within 
 the aforesaid parts & Islands." 
 
 Ordinances. — "And also to make Ordain, and Estab- 
 lish all manner of Orders, Lawes, directions Instruc- 
 tions, formes and Ceremonyes of Government and 
 Magistracy fitt and Necessary for and concerning the 
 Government of the Territoryes and Islands aforesaid so 
 always as the same be not contrary to the Lawes and 
 Statutes of this Our Realme of England, but as neare 
 as may bee Agreeable thereunto And the same at all 
 times hereafter to put in Execution, or abrogate, revoke 
 or Change not only within the precincts of the said 
 Territoryes, or Islands, but also upon the Seas in going 
 and coming to and from the same, as hee or they in 
 their good discretions, shall thinke to be fittest for the 
 good of the Adventurers, and Inhabitants there." 
 
 Martial law. — "That such Governors Officers and 
 Ministers, as from time to time shall be Authorized, and 
 appointed in manner and forme aforesaid, shall and 
 may have full power and Authority, to use and Exer- 
 cise Marshall law, in Cases of Rebellion, Insurreccon 
 and Mutinie, in as large and Ample manner as our 
 Lieutenants in our Countyes within Our Realme of 
 England, have, or ought to have by force of their Com- 
 
22 Constitutional History of New York. 
 
 mission of Lieutenancy, or any Law or Statute of this 
 our Realme." 
 
 Regulation of trade. — "That it shall and may be 
 Lawfull, to and for the said James Duke of Yorke his 
 heires and Assignes, in his or their discretions from 
 time to time, to admitt such, and so many person and 
 persons to Trade and Traffique unto and within the 
 Territoryes and Islands, aforesaid, and into every or 
 any part & parcell thereof, and to have possesse and 
 Enjoy, any Lands, or hereditaments in the parts and 
 places aforesaid, as they shall think fitt according to the 
 Lawes, orders, Constitutions, and Ordinances, by Our 
 said Brother, his heires Deputyes Commissioners and 
 Assignes, from time to time to be made and established, 
 by vertue of, and according to the true intent and mean- 
 ing of these presents and under such conditions, Reser- 
 vations and Agreements as Our said Brother, his heires 
 or Assignes shall set downe. Order, direct, and appoint 
 and not otherwise, as aforesaid." 
 
 The charter also provided for the encouragement of 
 colonization, and conferred all needed powers of mili- 
 tary defense. The Duke having received a conveyance 
 of the territory, the next step was to get possession of 
 it. This he proceeded at once to do, and sent an armed 
 fleet to New Netherland for that purpose. Governor 
 Stuyvesant surrendered to the English on the 27th of 
 August, 1664. The Articles of Capitulation contained 
 liberal provisions relative to the rights and privileges 
 of the Dutch settlers. Several of these provisions are 
 quoted at length in the chapter on the Colonial Period. 
 The new government was at once instituted under the. 
 authority of the Duke of York, which continued with 
 only a temporary interruption until the Duke became 
 King James II. by the death of King Charles II., in 
 February, 1685. 
 
Introduction. 23 
 
 It may be observed here that there was some sim- 
 ilarity between the powers conferred on the Duke of 
 York by this charter, and the powers conferred on the 
 Dutch West India Company by its charter of 1621. 
 The Duke has been called the first proprietor of New 
 York, and his government is known as a proprietary 
 government. This is doubtless true because, in general 
 terms, the charter was equivalent to a conveyance of 
 land conferring on him the right of possession, con- 
 trol, and government, subject only to the limitation that 
 the government must be consistent with the laws of 
 England. But the charter did not carry with it a 
 transfer of sovereignty ; that was reserved to the Crown 
 by the provision for tribute, by the right of appeal, and 
 by other incidental provisions. I think the powers con- 
 ferred on the Dutch West India Company by its charter 
 were essentially proprietary. It received a grant of 
 territory with the right to exercise extraordinary, if 
 not always exclusive, jurisdiction over it, and it was 
 expressly charged with the duty of establishing settle- 
 ments and colonizing the territory. As interpreted by 
 the order of the States General bearing date January 
 23, 1664, from which I have already quoted, the com- 
 pany was "empowered to establish colonies and settle- 
 ments on lands unoccupied by others," and establish 
 and maintain government therein. The States General 
 retained sovereignty by several provisions similar to 
 those included in the Duke's charter, among them one 
 requiring the company's officers to take an oath of al- 
 legiance, not only to the company, but to the home 
 government; another, requiring commissions to the 
 chief officers to be issued by the States General, and 
 another, giving the right of appeal from colonial tri- 
 bunals to the home government. The "Freedoms and 
 Exemptions" of 1629 and of 1650 indicate the same 
 
24 Constitutional History of New York. 
 
 general policy of conferring on the company the pro- 
 prietary control of the colony, subject to the limitations 
 already suggested. From a merely administrative pomt 
 of view, it may fairly be said that, by the charter to 
 the Duke and the possession of the colony which he 
 soon afterward acquired by conquest, the colony ceased 
 to be the property of a Dutch corporation, and became 
 the property of an English duke. 
 
 FORM OF GOVERNMENT. 
 
 The Duke of York might have come to his new pos- 
 sessions and might there have established a government 
 under his personal direction, with himself as chief 
 executive; but he elected to administer his govern- 
 ment through governors, councils, and other officers 
 appointed by himself. These appointments were held 
 during his pleasure, and he seems to have maintained 
 a careful personal supervision of colonial affairs. This 
 is manifest from the official correspondence of the 
 period, and is particularly illustrated by the code known 
 as the Duke's Laws, which the Duke caused to be pro- 
 mulgated in the colony on the ist of March, 1665. He 
 found an organized government, and by the Articles 
 of Capitulation local officers were continued until the 
 customary time for new elections. 
 
 Colonel Richard Nicolls, who was placed in charge 
 of the expedition to reduce New Netherland, imder 
 the Duke's charter, brought with him a commission as 
 deputy governor, and assumed the duties of that office 
 after the capitulation. The commission, dated April 2, 
 1664, recited the substance of the Duke's charter, and 
 appointed Nicolls "to perform and execute all and every 
 the powers which are, by the said letters patent, granted" 
 
Introduction. 25 
 
 unto the Duke, to be executed by his "Deputy, Agent, 
 or Assignes." The inhabitants of the new territory were 
 required to give obedience to the deputy governor "in 
 all things, according to the tenor of His Majesty's said 
 Letters Patents," and Nicolls was commanded to obey 
 such instructions as he might, from time to time, re- 
 ceive from the Duke. The commission was accom- 
 panied by a set of instructions concerning the details 
 of administration. I have not had access to this docu- 
 ment, which seems to have been lost, and I am therefore 
 unable to state the provisions contained in it. This 
 commission and the accompanying instructions con- 
 tinued a custom initiated by the Dutch, and which was 
 followed during the remainder of the colonial period. 
 The general authority of the governor was expressed 
 in a commission, and his powers were amplified, some- 
 times with considerable detail, in the instructions. In 
 many subsequent appointments both documents have 
 been preserved, and we are therefore able to study the 
 scope of the authority conferred on the governor and 
 other colonial officers, and ascertain the kind of gov- 
 ernment instituted, and the methods of administration. 
 
 On the 1st of July, 1674, following the re-establish- 
 ment of the Duke's authority after a temporary re-oc- 
 cupation of the territory by the Dutch, a commission 
 was issued to Edmund Andros, who was thereby ap- 
 pointed to be the Duke's "lieutenant and governor;" 
 otherwise the commission is substantially in the same 
 form as that issued to Colonel Nicolls. Andros received 
 instructions concerning his administration, embracing 
 many prudential- regulations, and also others of a funda- 
 mental character. The governor was recommended to 
 continue existing courts of justice, and was vested with 
 the power of appointment of new officers and magis- 
 trates. The governor was required to appoint a council 
 
26 Constitutional History of New York. 
 
 of not more than ten members, who were to be inhabi- 
 tants of the colony, with whom he was commanded to 
 consult on all extraordinary occasions relating to the 
 Duke's service and the good of the country. The coun- 
 cilors were to hold office during the Duke's pleasure, 
 and they and all other officers and magistrates were 
 required to take an oath of allegiance to the King and 
 an oath of fidelity to the Duke. 
 
 The Articles of Capitulation of 1664 contained a pro- 
 vision that "the Dutch here shall enjoy the liberty of 
 their consciences in Divine worship and church dis- 
 cipline." The Dutch were Protestants and were re- 
 quired to maintain the reformed religion, and the "Free- 
 doms and Exemptions" of 1640 declared that no other 
 religion should be publicly admitted in New Nether- 
 land. This was evidently not construed as excluding 
 adherents of other religious faiths, for it seems clear that 
 there were many such persons in the colony at a time 
 when the law recognized the established church only. 
 All persons, without regard to their religious faith, were 
 welcome in the colony, and their rights of conscience 
 were respected. The Duke of York, who had recently 
 become a Roman Catholic, made, in the instructions to 
 Governor Andros, the following provision for religious 
 toleration : 
 
 "You shall permit all persons of what religion so- 
 ever, quietly to inhabit within the precincts of your ju- 
 risdiction, without giving them any disturbance or dis- 
 quiet whatsoever, for or by reason of their differing 
 opinions in matter of religion; provided they give no 
 disturbance to the public peace, nor do molest or dis- 
 quiet others in the free exercise of their religion." 
 
 The reader cannot fail to mark the spirit of this pro- 
 vision, and to note its similarity with the provision 
 incorporated in the first state Constitution and which 
 
Introduction. 27 
 
 still continues as the gfuaranty of religious liberty. The 
 provision is also quite similar to that contained in the 
 Charter of Liberties of 1683, the full text of which 
 appears in a subsequent part of this Introduction, and 
 also in the new Charter of Liberties of 1691 ; but there 
 a proviso was added that "nothin|f herein mentioned 
 or contained shall extend to give lil5erty for any per- 
 sons of the Romish religion to exercise their manner 
 of worship contrary to the laws and statutes of their 
 majesties kingdom of England." In the chapter on the 
 Colonial Period I have called attention to the fact that 
 the proviso relating to Catholics was not in the charter 
 as it came from the assembly, but was added while the 
 bill was pending in the legislative council. 
 
 All legal process was required to be in the King's 
 name. 
 
 The governor and council constituted the colonial 
 legislature until the assembly was created in 1683. It 
 seems that immediately after the accession of Andros 
 as governor the people of the colony demanded a legis- 
 lative assembly. In letters transmitted near the end of 
 the year 1674 Andros communicated this demand to 
 the Duke, who replied in the following April, denying 
 the request, for the reason, among other things, that it 
 was inconsistent with the form of government estab- 
 lished in the colony, and not necessary "for the ease or 
 . redress of any grievance that may happen." 
 
 September 30, 1682, Thomas Dongan was appointed 
 governor of New York, and received instructions dated 
 the 27th of the following January, which show a 
 marked advance in ideas concerning constitutional gov- 
 ernment. The Duke's views had evidently experienced 
 a material change since the appointment of Andros, in 
 1674. I note some of the more important provisions in 
 the Dongan instructions. 
 
28 Constitutional History of New York. 
 
 The council was continued with somewhat enlarged 
 powers. The governor was required to consult the 
 council in matters relating to public affairs, and its mem- 
 bers were to have "freedom of debates and vote in all 
 affairs of public concern." The governor was given 
 power to suspend a councilor for good cause, and was 
 required to report the suspension, with the findings on 
 which it was made, to the Duke, for his final action. 
 
 The governor was directed to issue writs of election 
 for an assembly of not more than eighteen members. 
 This subject is considered at length in the chapter on 
 the Colonial Period, in this first volume, and in the 
 article on Apportionment in the chapter on the Constitu- 
 tion of 1894, in the third volume. The first assembly 
 met on the 17th of October, 1683. 
 
 General laws were to be made "indefinite and with- 
 out limitation of time," but temporary laws might be 
 limited in duration. Laws impairing the Duke's revenue 
 could not be passed without his special leave or command. 
 
 The governor was prohibited from removing any 
 colonial officer without good cause; he was also pro- 
 hibited from executing any local office by himself or 
 his deputy, and no person could execute more than one 
 office by a deputy. 
 
 The 39th article of Magna Charta was expressed in 
 the following form : 
 
 "And I do hereby require and command you that no 
 man's life, member, freehold, or goods, be taken away 
 or harmed in any of the places under your government 
 but by established and known laws not repugnant to 
 but as nigh as may be agreeable to the laws of the King- 
 dom of England." 
 
 The efficiency of the civil service was guarded by the 
 provision that "none be admitted to public trust and 
 employment whose ill fame and conversation may bring 
 
Introduction. 29 
 
 scandal thereupon." Perhaps this idea was borrowed 
 from article 45 of Magna Charta, in which King John 
 promised not to make "Justiciaries, Constables, Sheriffs, 
 or Bailiffs, excepting of such as know the laws of the 
 land, and are well disposed to observe them." 
 
 The governor might, with the advice of the council, 
 take such action as he might deem proper in matters 
 not specifically included in th,e instructions, reporting, 
 thereon to the Duke for his approval ; but the governor 
 could not engage in or declare war without the Duke's 
 knowledge and particular commands therein. 
 
 The governor was required to get a law passed, if 
 possible, fixing the qualifications of jurors. 
 
 The governor, with the advice of the council, was 
 authorized to establish such courts of justice as might 
 be deemed proper "for adjudging and determining all 
 matters, civil and criminal," making them, so far as 
 practicable, conformable to the courts of England. The 
 erection of courts was to be subject to the Duke's ap- 
 proval, but they were authorized to act until he signified 
 his pleasure to the contrary. 
 
 The governor was authorized to make grants of public 
 land at a yearly rent and service to be reserved to the 
 Duke and his heirs, and to be fixed by the governor and 
 council. 
 
 The governor was authorized to pardon or remit fines, 
 also to "pardon and remit all manner of crimes before 
 or after conviction" except high treason and murder, 
 and in these cases he was given the power of reprieve, 
 awaiting the Duke's final action. 
 
 The governor and council were required to provide 
 for the erection of needed custom houses, and also to 
 maintain an adequate force of militia. 
 
 The governor was prohibited from levying or collect- 
 
30 Constitutional History of New York. 
 
 ing any customs or imposts except as authorized by- 
 statute, to be enacted by the legislature. 
 
 The governor was directed to purchase additional 
 tracts of Indian lands, and also report to the Duke 
 concerning the propriety of granting to the city of New 
 York privileges and immunities not enjoyed by other 
 parts of the Duke's territories. 
 
 The deputy governor was authorized to act in case 
 of the absence or inability of the governor. 
 
 Other parts of the instructions related more especially 
 to administrative details. 
 
 Here was a complete outline of a constitution. It 
 provided for legislative, executive, and judicial depart- 
 ments of the government, with several provisions relat- 
 ing to personal rights and limitations of power. So 
 far as I have been able to discover, the plan of govern- 
 ment here outlined has no parallel in any earlier colonial 
 document. All our state Constitutions are constructed 
 upon the same general plan, differing in detail, and 
 amplified in many particulars to meet modern conditions. 
 It is worth while to remember that the essential prin- 
 ciples of Dutch and English liberty, including a parlia- 
 mentary form of government, were established under 
 a policy of which commercialism was the most con- 
 spicuous characteristic. The Dutch West India Com- 
 pany was distinctively a commercial corporation, yet it 
 was charged with the duty of colonizing a portion of 
 the new world and of establishing within its territory 
 laws, social and political institutions, and policies of 
 administration, which were to be of such a high char- 
 acter that they would attract immigration, encourage 
 investments, and at the same time promote the general 
 welfare of a community intended to be in America what 
 its name implied, — a New Netherland. The Duke of 
 York had been assured that his American possessions 
 
Introduction. 31 
 
 might reasonably yield him an annual revenue of thirty 
 thousand pounds sterling. He was desirous of reim- 
 bursing himself for large outlays in establishing his gov- 
 ernment, and also wished to receive the revenue which 
 a prosperous colony promised; and while the business 
 side of his policy cannot be overlooked, it must be con- 
 ceded that the instructions to his governors are marked 
 by a sincere desire to foster in America the institutions 
 which had so largely contributed to England's greatness. 
 
 Royal Commissions and Instructions. 
 
 We come now to the last period of colonial history. 
 By the death of Charles II., in February, 1685, his 
 brother, the Duke of York, became James II. of Eng- 
 land, and his title as proprietor of New York was merged 
 in his higher title as king. New York thereupon ceased 
 to be a proprietary colony, and became a royal province. 
 The attitude of James toward the colony was necessarily 
 changed, and he was obliged to consider his American 
 possessions from the point of view of the reigning sov- 
 ereign. 
 
 June 10, 1686, King James issued a new commission 
 to Governor Dongan, who, in this commission, was 
 called "captain general and governor in chief," — a title 
 which was continued through the remainder of the 
 colonial period. No provision was made for an assembly, 
 but the governor and council were vested with general 
 legislative and executive powers. The council was to 
 be composed of seven members. This commission, like 
 its predecessor of 1682, conferred on the governor and 
 council power to .erect courts and appoint judges. Ap- 
 peals involving large amounts were authorized to the 
 governor and council, and afterwards to the King. The 
 
32 Constitutional History of New York. 
 
 pardoning power conferred by the previous commission 
 was continued substantially in the same form.^ Pro- 
 vision was made for continuing the government in case 
 of the governor's absence or inability to act, and, m 
 the absence of the governor or his substitute, the gov- 
 ernment was, for the time being, to devolve upon the 
 council. Other provisions are substantially repetitions 
 of the former commission. The new commission calls 
 New York a province. The instructions accompanying 
 this commission contained only directions and require- 
 ments relating to navigation and the enforcement of 
 English navigation laws. 
 
 Governor Dongan was superseded by Sir Edmund 
 Andros, who, on the 7th of April, 1688, received a com- 
 mission as captain general and governor in chief of a 
 new domain, including what is now New England, New 
 York, and East and West Jersey. The commission 
 repeated in large part the provisions contained in the 
 Dongan commission of 1686. It vested legislative and 
 executive power in the governor and council, and pro- 
 vided for details of administration much like its prede- 
 cessor. It provided for a lieutenant governor, which, I 
 believe, is the first time this office is named in any 
 colonial commission. The instructions accompanying 
 the commission contained one provision which enunciated 
 a principle quite contrary to a provision of our Consti- 
 tution which guarantees a free press. The instructions 
 say that "forasmuch as great inconvenience may arise 
 by the liberty of printing within our said Territory, under 
 your government, you are to provide by all necessary 
 orders, that no person keep any printing press for print- 
 ing, nor that any book, pamphlet, or other matter what- 
 soever be printed without your especial leave and license 
 first obtained." 
 
 December 11, 1688, nine months after this proposed 
 
Introduction. 33 
 
 combination of colonial interests under the administra- 
 tion of Governor Andros, James abandoned the English 
 throne and was succeeded by William and Mary. No- 
 vember 14, 1689, the new government appointed Henry 
 Sloughter to be captain general and governor in chief 
 of the province of New York. The commission, which 
 bears date January 4, 1690, conforms generally to com- 
 missions issued to previous governors, but it contains 
 some exceptions which should be noted. It revived the 
 assembly, and established that branch of government 
 upon a lasting foundation. The governor, council, and 
 assembly were together to constitute the legislature, and 
 had power to enact all statutes relating to the colony. 
 The governor was given an absolute veto on all laws, and 
 any laws approved by him were still subject to veto by 
 the Crown. The governor might adjourn, prorogue, 
 or dissolve the assembly. 
 
 The instructions to Governor Sloughter which accom- 
 panied his commission contained the following pro- 
 visions relating to religion and education : 
 
 "You shall take care that God Almighty be devoutly 
 and duly served throughout your Government, The Book 
 of Common Prayer as it is now established, read each 
 Sunday and Holy Day, and the blessed Sacrament ad- 
 ministered according to the rites of the Church of Eng- 
 land." 
 
 Church appointments were to be made subject to the 
 approval of the Bishop of London, who was given ecclesi- 
 astical jurisdiction in the province. 
 
 "You are to permit a liberty of Conscience to all 
 Persons (except Papists) so they be contented with a 
 quiet and Peaceable enjoyment of it, not giving offense 
 or scandall to the Government." 
 
 This provision relating to religious toleration appears 
 in subsequent instructions to colonial governors, and is 
 Vol. I. Const. Hist.— 3. 
 
34 Constitutional History of New York. 
 
 repeated in the instructions to Governor Tryon, which 
 bear date February 7, 1771- It was therefore in force 
 at the beginning of the Revolution, and was the rule 
 of the colony on this subject when the first state Consti- 
 tution was framed, in 1777. The instructions to Gov- 
 ernor Sloughter continue: 
 
 "You are, with the assistance of our Council, to find 
 out the best meanes to facilitate and encourage the con- 
 version of Negroes and Indians to the Christian Re- 
 ligion. 
 
 "We do further direct that no School master be hence- 
 forth permitted to come from England & to keep school 
 within our Province of New York without a License 
 of the said Bishop of London and that no other Person 
 now there, or that shall come from other parts be ad- 
 mitted to keep school without your License first had." 
 
 The instructions repeated the civil service provision 
 contained in the Dongan instructions of 1683, and also 
 provided that councilors and the other principal colonial 
 officers should be "men of estate and ability and not 
 necessitous people or much in debt. And that they be 
 persons well affected to our government." This im- 
 posed a property qualification which was continued as to 
 many officers during the colonial period and under the 
 state government until abolished by the amendment of 
 1845. A property qualification is still imposed by stat- 
 ute in many cases, especially as to municipal officers. 
 
 The instructions repeated the prohibition against a 
 free press which has already been quoted from the Andros 
 instructions of 1688. The instructions also prohibited 
 any change of value in current coin, either domestic or 
 foreign, without the royal approval. 
 
 The form of government provided by Governor 
 Sloughter's commission and instructions continued with- 
 out substantial change in its essential features through 
 
Introduction. 35 
 
 the remainder of the colonial period, which, for all 
 practical purposes, except as to the southern portion of 
 the province, closed in 1775. Many governors held 
 office in the province during this period, all of whom 
 received commissions and instructions conforming in 
 general to those issued to Governor Sloughter; it would 
 therefore be needless repetition to give even a synopsis 
 of these commissions and instructions here. Some of the 
 instructions were brief, some quite prolix, one set in- 
 cluding nearly one hundred articles. The amplifications 
 were usually incident to the development of English 
 commercial interests, to the additional subjects requiring 
 executive attention, and to the inclusion of Connecticut 
 as a part of the military jurisdiction of the governor of 
 New York. These commissions and instructions, with 
 additional special instructions frequently communicated 
 to the governor, constituted the form or frame of govern- 
 ment, or what was kijown in the official correspondence 
 of the time as the ^Constitution of the colony. This 
 term is often used in official documents and correspond- 
 ence, and manifestly refers to the framework of local 
 government, including not only the specific powers con- 
 ferred by the commissions and instructions, but also the 
 implied powers expressed through colonial legislation, 
 and customs and forms of procedure which were the 
 result of many years of experience in administering 
 colonial affairs. 
 
 William Tryon became governor of New York on 
 the 9th of July, 1771, and continued to hold office until 
 the 23d of March, 1780, when he was succeeded by 
 James Robertson. Tryon was the last colonial governor 
 who exercised actual jurisdiction over the whole prov- 
 ince. I have recounted in the first and second chapters 
 of this work some of the features which interrupted the 
 course of orderly government in New York, developing 
 
36 Constitutional History of New York. 
 
 into independence, the separation of the province, and 
 the erection of state government. The colonial period 
 closed during Governor Tryon's administration, but he 
 continued to be governor nearly three years after the 
 adoption of the state Constitution, although his juris- 
 diction was confined to a very small part of the state. 
 Indeed, civil jurisdiction was practically suspended; for 
 when he went out of office, in 1780, the province was 
 and had been for some time under martial law, with Sir 
 Henry Clinton in chief command. 
 
 Treating the governor's commission and the accom- 
 panying instructions as elements of a constitution, we 
 are able to examine, at least in part, the theory of consti- 
 tutional government in New York immediately before the 
 erection of the new state. A manuscript copy of Gov- 
 ernor Tryon's commission may be found in the New 
 York State Library, in volume 4 of Commissions. In its 
 general outlines this commission conforms to the com- 
 missions issued to previous governors, beginning with 
 the commission issued to Governor Sloughter in 1690, 
 after the abdication of King James and the accession 
 of William and Mary. It therefore stands as the last 
 expression of the royal will concerning government in 
 New York prior to the Revolution. Governor Tryon 
 took the oath of office July 9, 1771. Five years later, 
 on the anniversary of this day, July 9, 1776, the Pro- 
 vincial Congress of New York ratified the Declaration 
 of Independence, and assumed the administration of 
 public affairs, except as to those portions of the province 
 actually occupied by the British army. 
 
 I have elsewhere expressed the opinion that Governor 
 Tryon was one of the ablest executives New York had 
 during the entire colonial period. He was governor of 
 North Carolina several years before his appointment to 
 New York. His long official service enabled him to 
 
Introduction. 37 
 
 acquire an extensive and accurate knowledge of public 
 aflfairs. He was therefore peculiarly qualified to answer 
 the question 
 
 "what is the constitution of the government?" 
 
 which, with twenty-one other questions (including one 
 applicable only to West Florida), was propounded by 
 the home government to the governors of the Ameri- 
 can colonies in a document which bears date July 5, 
 1773, and which required detailed information concern- 
 ing various aspects of colonial afifairs. Governor Tryon 
 replied for New York on the nth of June, 1774, in a 
 document which will well repay perusal by every student 
 of our history. Several extracts from his answer to 
 the foregoing question are made in different parts of 
 this work, but for convenience it is given here in full. 
 It contains a summary of the powers conferred upon 
 him, and a description of several features of colonial 
 government, many of which originated in colonial legis- 
 lation. 
 
 Governor Tyron says : 
 
 "By the Grants of this Province and other Territories 
 to the Duke of York in i66f and 1674, the powers of 
 Government were vested in him, and were accordingly 
 exercised by his Governors until he ascended the Throne 
 when his Rights as Proprietor merged in his Crown, 
 and the Province ceased to be a charter Government. 
 
 "From that time it has been a Royal Government, and 
 in its constitution nearly rfesembles that of Great Britain 
 and the other Royal Governments in America. The 
 Governor is appointed by the King during his Royal 
 Will and pleasure by Letters Pattent under the Great 
 Seal of Great Britain with very an ' Powers. — He 
 
38 Constitutional History of New York. 
 
 has a Council in Imitation of His Majesty's Privy 
 Council.— This Board when full consists of Twelve 
 Members who are also appointed by the Crown during 
 Will and Pleasure; any three of whom make a Quorum. 
 — The Province enjoys a Legislative Body which con- 
 sists of the Governor as the King's Representative ; the 
 Council in place of the House of Lords, and the Repre- 
 sentatives of the People, who are chosen as in England : 
 Of these the City of New York sends four. — All the 
 other Counties (except the New Counties of Charlotte 
 and Gloucester as yet not represented) send Two — The 
 Borough of Westchester, The Township of Schenectady 
 and the three manors of Renselaerswyck, Livingston 
 and Cortlandt each send one; in the whole forming a 
 Body of Thirty one Representatives. 
 
 "The Governor by his commission is authorized to 
 convene them with the advice of the Council, and ad- 
 journ, prorogue or dissolve the General Assembly as he 
 shall judge necessary. 
 
 "This body has not power to make any Laws repug- 
 nant to the Laws and Statutes of Great Britain. All 
 Laws proposed to be made by this Provincial Legislature, 
 pass thro' each of the Houses of Council and Assembly, 
 as Bills do thro' the House of Commons and House of 
 Lords in England, and the Governor has a Negative 
 voice in the making and passing all such Laws. Every 
 law so passed is to be transmitted to His Majesty under 
 the Great Seal of the Province, within three Months or 
 sooner after the making thereof and a Duplicate by the 
 next Conveyance, in order to be approved or disallowed 
 by His Majesty; And if His Majesty shall disallow any 
 such Law and the same is signified to the Governor 
 under the Royal Sign Manual or by Order of his 
 Majesty's Privy Council, from thenceforth such law be- 
 
Introduction. 39 
 
 comes utterly void. — A law of the Province has limited 
 the duration of the Assembly to seven years. 
 
 "The Common Law of England is considered as the 
 Fundamental law of the Province and it is the received 
 Doctrine that all the Statutes (not local in their Nature, 
 and which can be fitly applied to the circumstances of 
 the Colony) enacted before the Province had a Legis- 
 lature, are binding upon the Colony; but that Statutes 
 passed since do not affect the Colony, unless by being 
 specially named, such appears to be the Intention of the 
 British Legislature. 
 
 "The Province has a Court of Chancery in which the 
 Governor or Commander in Chief sits as Chancellor, 
 and the Practice of the Court of Chancery in England 
 is pursued as closely as possible. The Officers of this 
 Court consist of a Master of the Rolls newly created. — 
 Two Masters. — Two Clerks in Court. — A Register. — 
 An Examiner, and a Serjeant at Arms. 
 
 "Of the Courts of Common Law the Chief is called 
 the Supreme Court. — The Judges of which have all the 
 Powers of the King's Bench, Common Pleas & Ex- 
 chequer in England. This Court sits once in every three 
 months at the City of New York, and the practice therein 
 is modell'd upon that of the King's Bench at West- 
 minster. — Tho' the Judges have the powers of the Court 
 of Exchequer they never proceed upon the Equity side. — 
 The Court has no Officers but one Clerk, and is not 
 organized or supplied with any Officers in that Depart- 
 ment of the Exchequer, which in England has the care 
 of the Revenue. — The Judges of the Supreme Court 
 hold their Offices during the King's Will & Pleasure and 
 are Judges of Nisi prius of Course by Act of Assembly, 
 & annually perform a Circuit thro' the Counties. The 
 Decisions of this Court in General are final unless 
 where the value exceeds £300 Sterling, in which case 
 
40 Constitutional History of New York. 
 
 the subject may be relieved from its errors only by an 
 Application to the Governor and Council, and where 
 the value exceeds £500 Sterling an appeal lies from the 
 Judgment of the latter to His Majesty in Privy Council. 
 
 "By an Act of the Legislature of the Province suits 
 are prohibited to be brought in the Supreme Court where 
 the value demanded does not exceed £20 Currency. 
 
 "The Clerk's office of the Supreme Court, has always 
 been held as an appendage to that of the Secretary of 
 the Province. 
 
 "There is also in each County an Inferior Court of 
 Common Pleas, which has the cognizance of all Actions 
 real, personal and mixed, where the matter in demand 
 is above £5 in value. — The practice of these Courts is 
 a mixture between that of the King's Bench and Com- 
 mon Pleas at Westminster. — Their errors are corrected 
 in the first Instance by Writ of Error brought into the 
 Supreme Court; and the Judges hold their Offices 
 during pleasure. — The Clerks of these Courts also hold 
 their offices during pleasure and are appointed by the 
 Governor, except the Clerk of Albany who is appointed 
 under the King's mandate. 
 
 "Besides these Courts the Justices of peace are by Act 
 of Assembly empowered to try all causes to the Amount 
 of £5 currency, (except where the Crown is concerned, 
 or where the Title to Lands shall come into Question ; — 
 and Actions of Slander), but the parties may either of 
 them demand a Jury of Six Men. — If wrong is done to 
 either party, the person injured may have a Certiorari 
 from the Supreme Court, tho' the remedy is very in- 
 adequate. 
 
 "The Courts of Criminal Jurisdiction are Correspond- 
 ent to those in England. — The Supreme Court exercises 
 it in the City of New York, as the King's Bench does 
 at Westminster.— The Judges when they go the Circuit 
 
Introduction. 41 
 
 have a Commission of Oyer and Terminer and General 
 Gaol Delivery; and there are Courts of Sessions held 
 by the Justices of the Peace; the powers of which and 
 their proceeding correspond with the like Courts in Eng- 
 land. — The Office of Clerk of Sessions, is invariably 
 connected with that of the Clerk of the Inferior Court 
 of Common Pleas in the respective counties. 
 
 "By acts of the Provincial Legislature the Justices of 
 the Peace have an extraordinary Jurisdiction with respect 
 to some offences by which any three Justices, (one being 
 of the Quorum, where the Offender does not find Bail 
 in 48 Hours after being in the custody of the Constable, 
 may try the party without any * or a Jury, for any 
 Offence under the Degree of Grand Larceny; and in- 
 flict any punishment for these small offences at their 
 Discretion, so that it exceeds not to Life or Limb. — And 
 any three Justices of the Peace (one being a Quorum) 
 and Five Freeholders have power without a Grand or 
 Petty Jury to proceed against and try in a Summary 
 Way, Slaves offending in certain cases, and punish them 
 even with Death. 
 
 "The Duty of His Majesty's Attorney General of the 
 Province, is similar to the Duty of that Officer in Eng- 
 land, and the Master of the Crown Office: He is ap- 
 pointed by the Crown during pleasure, and His Majesty 
 has no Sollicitor General nor Council in the Province, 
 to assist the Attorney General upon any Occasion. ^ 
 
 "There are two other Courts in the Province. The 
 Court of Admiralty which proceeds after the Course of 
 the Civil Law in matters within its Jurisdiction, which 
 has been so enlarged by divers statutes, as to include al- 
 most every breach of the Acts of Trade. — From this 
 Court an appeal lies to a Superior Court of Admiralty, 
 lately Established in North America by statute; before 
 
 *Blank in original. 
 
42 Constitutional History of New York. 
 
 this Establishment an appeal only lay to the High Court 
 of Admiralty of England. 
 
 "The Prerogative Court concerns itself only on the 
 Probate of Wills in matters relating to the Administra- 
 tion of the Estates of Intestates and in granting Licenses 
 of Marriage. The Governor is properly the Judge of 
 this Court but it has been usual for him to Act in general 
 by a Deligate. 
 
 "The Province is at present divided into fourteen 
 Counties, viz., The City and County of New York — The 
 County of Albany — Richmond (which comprehends the 
 whole of Staten Island) King's, Queen's and Suffolk 
 (which include the whole of Nassau or Long Island.) 
 Westchester, Dutchess, Ulster, Orange, Cumberland, 
 Gloucester, Charlotte and Tryon. — For each of these 
 Counties a Sheriff and one or more Coroners are ap- 
 pointed by the Governor, who hold their offices during 
 pleasure. 
 
 "As to the Military power of the Province, the Gov- 
 ernor for the time being is the Captain General and Com- 
 mander in Chief and appoints all the Provincial Military 
 Officers during pleasure." 
 
 In addition to the foregoing statement it appears from 
 Governor Tryon's commission that the province had a 
 lieutenant governor who might succeed to the governor- 
 ship in cases similar to those provided for under our 
 state Constitutions. The governor had power to suspend 
 the lieutenant governor and also members of the council. 
 The pardoning power was vested in the governor except 
 as to treason and murder, which could only be pardoned 
 by the Crown. The colonial government was author- 
 ized to erect forts and other means of defense, and estab- 
 lish and maintain a militia. Public money was to be 
 paid out only on the governor's warrant, approved by 
 the council. This provision may be found in many 
 
Introduction. 43 
 
 previous commissions. 'A provision for a temporary 
 gubernatorial succession was continued from former 
 commissions. In case of a vacancy in the office of gov- 
 ernor and lieutenant governor, or the absence or inability 
 of these officers to act, the eldest councilor whose name 
 was first placed in the instructions, and who, at the time 
 of the vacancy, was residing in the colony, was to assume 
 and exercise the executive office until the vacancy should 
 be filled. The commission gave the governor little op- 
 portunity for the exercise of arbitrary power, for it was 
 expressly provided that he should administer public 
 affairs according to the terms of the commission and the 
 instructions, and also "according to such reasonable laws 
 and statutes as are now in force or hereafter shall be 
 made and agreed upon" by the colonial legislature. The 
 commission contains several details of an administrative 
 character which need not be noticed here. 
 
 This brings us to the close of the colonial period, and 
 we find a constitutional form of government which was 
 continued without material change in the first state Con- 
 stitution. 
 
 The Interregnum. 
 
 Constitutional government in New York, as under- 
 stood and explained by Governor Tryon in the fore- 
 going statement, was, of course, interrupted by the Revo- 
 lution, which put an end to existing conditions and re- 
 quired the creation of a new form of government. It 
 already appears that Governor Tryon took office in July, 
 1 771. He found an organized government which had 
 continued without substantial change for eighty years, — 
 since the revival of the assembly in 1691. Governor 
 Tryon found an assembly which had been chosen under 
 writs of election issued January 14, 1769, and returnable 
 
44 Constitutional History of New York. 
 
 February 14. The limit of an assembly was then seven 
 years. August 7, 1771, the Governor submitted to the 
 council the question whether the present assembly should 
 be continued or dissolved. The council unanimously 
 recommended that it be continued. No new assembly 
 was chosen during Governor Tryon's administration. 
 The last legislation by this assembly was enacted on the 
 3d of April, 1775. The assembly was prorogued at dif- 
 ferent times, but did not meet again. 
 
 On the 23d of December, 1775, Governor Tryon sub- 
 mitted to the council the question of dissolving the as- 
 sembly, and on the 26th a majority of the council recom- 
 mended its dissolution and the election of a new as- 
 sembly, but the Governor said that he had communicated 
 with the chief justice on the subject, and had been advised 
 by him that it was inexpedient to dissolve the assembly 
 at this time. Several prorogations followed, the last 
 being to April 17, 1776. This was past the limit of 
 seven years fixed by the law for the existence of an 
 assembly. The failure to prorogue the assembly from 
 April 17 caused its dissolution. Governor Tryon notes 
 this circumstance in a letter to Lord Germain, dated 
 the 1 8th of April, 1776, and, in explanation, says the 
 council, by whose advice it was prorogued to the 17th 
 inst., had not been permitted to wait on him, agreeable 
 to his summons, in order to advise concerning the further 
 prorogation of it. The dissolution of the assembly sus- 
 pended the legislative power of the province, and it was 
 not revived. Governor Tryon evidently did not deem 
 it expedient to call another assembly. The majority of 
 the late assembly had adhered to the cause of the King, 
 and had opposed the movement for independence; but 
 it is quite probable that if a new election had been ordered 
 the patriots would have controlled the new assembly. 
 A few weeks after the dissolution of the assembly, July 
 
Introduction. 45 
 
 4, 1776, the colonies were declared to be free and inde- 
 pendent states; and on the 9th this action was ratified 
 by the New York convention. From that time until the 
 British evacuation, in November, 1783, New York was 
 under two governments: the city of New York and 
 some adjacent territory, being actually occupied by the 
 British army, continued under the colonial government, 
 which was administered by Governor Tryon and his 
 successor under such limitations as were imposed by 
 the fact that it had no legislature, and that it was under 
 martial law. 
 
 Civil authority was practically suspended. Governor 
 Tryon mentions this in one of his letters, and says that 
 his official functions have been materially circumscribed 
 by the situation incident to military government. The 
 functions of the executive council were likewise rendered 
 substantially dormant during this period, for the same 
 reason. The southern part of the state, including the 
 counties of Westchester, New York, Richmond, Kings, 
 Queens, and Suffolk, were under British dominion after 
 the arrival of the army in the summer of 1776. In the 
 chapter on the First Constitution it has been noted that 
 the Fourth Provincial Congress was called to meet in 
 New York early in July, 1776, but it^was not deemed 
 prudent to meet there on account of the approach of 
 the enemy's forces, and for that reason the first meeting 
 of this congress was held at White Plains. The southern 
 portion of the state remained under British control until 
 the close of the war. The official correspondence of the 
 period shows that the people quite readily acknowledged 
 the situation in which they were placed, and either be- 
 cause of the presence of the army, or for other reasons, 
 a large number of citizens took the oath of allegiance 
 to the Crown. Governor Tryon, in a letter to his govern- 
 ment dated February 11, 1777, says that 3,020 citizens 
 
46 Constitutional History of New York. 
 
 of the city of New York had taken the oath of allegiance, 
 and that, in his opinion, not more than one hundred 
 had failed to take the oath. According to the census 
 of 1771 New York had 5,083 white males between 16 
 and 60, — the military age, — the whole population being 
 18,726 whites and 3,137 blacks. There must have been a 
 numerous migration from the city in consequence of the 
 Revolution, if there were only about 3,000 citizens left at 
 the beginning of the year 1777. We know that many 
 left the city and remained away until the close of the 
 war, including prominent citizens like John Jay, James 
 Duane, Robert Harpur, John Morin Scott, Isaac Roose- 
 velt, and others who were actively engaged in the service 
 of the new state. Similar action relating to oaths of 
 allegiance was taken in the Long Island counties. Gov- 
 ernor Tryon also reported, on the 15th of February, 
 1777, that at his instance a paper was being signed by 
 the inhabitants of the city revoking and annulling "all 
 powers and authorities of Congress, Committees, and 
 Conventions over them." ,This was done, he said, so 
 that the delegates from New York to the Provincial 
 Convention and to the Continental Congress could no 
 longer pretend that they were representing the people 
 of the city. 
 
 The instructions to Governor Rpb^ertson, who took 
 office March 23, 1780, informed him that Sir Henry 
 Clinton had power to restore to peace the whole or any 
 part of the province, if he should judge it fitting, in 
 which case the civil Constitution should revive and the 
 Governor's civil authority become competent under his 
 commission. The Governor was admonished to appoint 
 to office only persons of assured loyalty. The calling of 
 an assembly, on the restoration of civil authority, was 
 left to the discretion of the Governor and council. The 
 instructions further say "that it is the King's wish to give 
 
Introduction. 47 
 
 that proof to the inhabitants of New York, and of all 
 the other provinces, that it is not His Majesty's inten- 
 tion to govern America by military law, but to allow 
 them all the benefits of a local legislature, and their 
 former Constitution." But martial law was continued 
 and civil authority was not restored. 
 
 The temper of the English people, and their opinion 
 concerning the probable outcome of the struggle with 
 the colonies, is clearly shown by the action of the House 
 of Commons early in 1782, in relation to the war. Feb- 
 ruary 27 the House of Commons voted an address to 
 the King, reciting, among other things, that, in the judg- 
 ment of the House, "the further prosecution of offensive 
 war on the continent of North America, for the purpose 
 of reducing the revolted colonies to obedience by force, 
 will be the means of weakening the efforts of this country 
 against her European enemies; tends, under the present 
 circumstances, dangerously to increase the mutual en- 
 mity so fatal to the interests both of Great Britain and 
 America ; and, by preventing a happy reconciliation with 
 that country, to frustrate the earnest desire graciously 
 expressed by His Majesty, to restore the blessings of 
 public tranquillity." The King made a favorable reply, 
 which was presented to the House on the 4th of March, 
 whereupon the House adopted the following: 
 
 "That, after the solemn declaration of the opinion of 
 this House, in their humble, address, presented to His 
 Majesty on Friday last, and His Majesty's assurance 
 of his gracious intention, in pursuance of their advice, 
 to take such measures as shall appear to His Majesty 
 to be most conducive to the restoration of harmony be- 
 tween Great Britain and the revolted colonies, so essen- 
 tial to the prosperity of both, this House will consider 
 as enemies to His Majesty and this country, all those 
 who shall endeavor to frustrate His Majesty's paternal 
 
48 Constitutional History of New York. 
 
 care for the ease and happiness of his people, by advis- 
 ing, or by any means attempting, the further prosecution 
 of offensive war on the continent of North America, 
 for the purpose of reducing the revolted colonies to 
 obedience by force." 
 
 Subsequently Governor Robertson sought, on two oc- 
 casions, to re-establish civil authority. The first was on 
 the 2ist of March, 1782, at which time he probably had 
 not received information of the action of the House of 
 Commons, practically terminating the war. He pre- 
 sented to the council a written communication, in which 
 he said that soon after the Governor assumed his office 
 the commander in chief had declared that he judged the 
 "restoration of civil government would be prejudicial to 
 His Majesty's service, and impede the progress of his 
 arms, the subduing of the rebellion being the first object;" 
 but that since the surrender at Yorktown the commander 
 in chief had intimated that he would no longer oppose the 
 irevival of civil government, and the Governor therefore 
 submitted to the council the question whether the restora- 
 tion of civil government was advisable under existing cir- 
 cumstances. The council, Chief Justice Smith dissent- 
 ing, expressed the opinion that they did not consider that 
 "the eligible moment for the restoration of civil govern- 
 ment." On the 4th of May following Governor Robert- 
 son laid before the council the foregoing resolves of the 
 House of Commons and the King's action thereon, and 
 informed the council that he had been appointed com- 
 mander in chief of the King's forces in America, and that 
 he could, "without soliciting the consent of any other 
 person, make the suppression of civil government in this 
 province cease," and was ready to take this measure if it 
 should be approved by the council. The council. Chief 
 Justice Smith again dissenting, replied that, in their 
 judgment, "no good consequence to the King's interest 
 
Introduction. 49 
 
 or to the happiness of the people can arise from the 
 restoration of civil government at this time and under 
 the present circumstances." 
 
 The wisdom of the council's action on the proposition 
 to restore civil government seems very clear. The war 
 was practically over, peace negotiations had already be- 
 gun, and independence was an assured fact. The peo- 
 ple in that part of the state north of Westchester county 
 were enjoying a real republican government, fully or- 
 ganized in all its departments, state and local, which had 
 been in operation since early in September, 1777, and it 
 was therefore impracticable to try to re-establish the old 
 colonial form of government, which, at most, could be 
 put into operation only in the city of New York and 
 vicinity. While the members of the council were un- 
 doubtedly loyal, they must have become convinced, by 
 the course of events, that colonial government, as it ex- 
 isted prior to the Revolution, could not be restored ; they 
 therefore wisely determined to live under martial law a 
 little longer and wait for the peace with independence 
 which must soon come, after which the state govern- 
 ment already organized would be extended over the ter- 
 ritory then under British control. The people in the 
 northern part of the state had six years more of real 
 constitutional government than their neighbors in the 
 city of New York and vicinity. Provisional articles for 
 a treaty of peace were signed on the 30th of November, 
 1782, and the definitive treaty was signed on the 3d of 
 September, 1783. 
 
 The last session of the state legislature prior to the 
 definitive treaty of peace was held at Kingston, and ad- 
 journed in March, 1783, to meet again at a time and 
 place to be specified in a proclamation to be issued by 
 the Governor for that purpose. The British evacuated 
 New York on the 25th of November, 1783, and on the 
 Vol I. Const. Hist.— 4. 
 
50 Constitutional History of New York. 
 
 same day General Washington, with a detachment of 
 the American army, entered the city. He was accom- 
 panied by Governor George Clinton, who at once as- 
 sumed civil authority. On the 9th of December follow- 
 ing the Governor issued a proclamation convening the 
 legislature in the city of New York on the 6th of January, 
 1784. A quorum was not present until the 21st. The 
 legislature was then organized, and Governor Clinton 
 delivered the customary speech in the presence of both 
 houses. Referring to the close of the war, he said : 
 
 "By the favor of Divine Providence, the seal is put to 
 our independence; our liberties are established on the 
 firmest basis ; and freedom in this district seems to derive 
 additional luster from the objects which remind us of the 
 despotism that so lately prevailed. . . . While we 
 survey the ruins of this once flourishing city, and its 
 vicinity, while we sympathize in the calamities which have 
 reduced so many of our virtuous fellow citizens to want 
 and distress, and are anxiously solicitous for means to 
 repair the wastes and misfortunes which we lament, how 
 ought our hearts to overflow with love and gratitude to 
 our adorable Creator, through whose gracious interpo- 
 sition bounds have been set, and probably forever, to such 
 scenes of horror and devastation." Commenting on the 
 relations to the state which the people had assumed 
 under the new form of government. Governor Clinton 
 says that "though fear may support a despotism, and a 
 hereditary nobility uphold the throne of a limited mon- 
 arch, nothing but good faith and public virtue can give 
 authority or credit to a free republic." 
 
 When the British moved out, the New York state gov- 
 ernment moved in, and after more than seven years civil 
 authority under a written constitution was established in 
 all parts of the state. Thus ended British rule in New 
 
Introduction. 51 
 
 York, and thus ended a long interregnum during which 
 constitutional government was in abeyance. 
 
 We turn now to the part of the state in which inde- 
 pendence was asserted and established. Here the inter- 
 val between the suspension of civil power in the colony, 
 and the establishment of a state government under the 
 new Constitution, was comparatively short. Martial 
 law, which was in force in the southern part of the state, 
 obviously could not reach beyond the range of British 
 military operations; hence it had no application in that 
 part of the state under the immediate control of the 
 patriot convention and army. The dissolution of the 
 colonial assembly in April, 1776, was not of itself a 
 serious interruption of civil government, because another 
 assembly might have been chosen and legislative power 
 might have been re-established. The higher courts were 
 closed as a result of martial law, and the powers of the 
 judges were temporarily suspended. The Governor, 
 who, by reason of his appointment and relations to the 
 Crown, could not have been expected to sympathize with 
 the movement for independence, did not attempt to exer- 
 cise executive ftinctions even where martial law was not 
 in force. Therefore, to prevent anarchy, it became nec- 
 essary to institute the best government that seemed then 
 available. This new government was administered for 
 the time being by a congress or convention composed of 
 deputies chosen from various parts of the state not under 
 British control, and this convention, for more than a 
 year, assumed and exercised large executive, legislative, 
 and judicial powers. This subject is considered in the 
 second chapter, and needs little further attention here. 
 
 A congress, called a convention, met in the city of New 
 York on the 22d of May, 1775. It was chosen for the 
 purpose of considering subjects relating to the welfare 
 of the country in view of the impending struggle for 
 
52 
 
 Constitutional History of New York. 
 
 independence. It acted in conjunction with the Conti- 
 nental Congress, but chiefly devoted its energies to mili- 
 tary preparations. This congress continued in session 
 until November 4, 1775, with some intermediate adjourn- 
 ments, during which a committee of safety, created by 
 the congress, acted in its place and performed certain 
 specified functions. This congress directed the election 
 of a new congress, to meet on the 14th of November, 
 1775, but it was not organized until the 6th of December. 
 It adjourned May 13, 1776. According to the journal 
 of this congress resolutions were adopted on the nth of 
 March, 1776, directing the election of a new congress, 
 to meet on the 14th of May, but the resolutions are not 
 entered in the journal, and diligent search has failed to 
 discover a copy of them. In April, 1776, elections were 
 held in accordance with the directions contained in these 
 resolutions, and deputies were chosen to constitute a new 
 congress, to meet on the 14th of May, 1776. It was 
 organized on the 22d of May and adjourned on the 30th 
 of June. The deputies to the two previous congresses 
 had been chosen for the term of six months, but the 
 deputies to this congress were chosen for one year. 
 The short duration of this congress is due to its decision 
 concerning its own powers under a resolution of the 
 Continental Congress, which had been adopted after 
 this provincial congress was elected, but before it met. 
 The Continental Congress, on the loth of May, adopted 
 a resolution recommending that a regular government be 
 established in each state. The New York Provincial 
 Congress, which was organized on the 22d of May, 1776, 
 decided that it had no power to erect a state government, 
 and therefore determined to go back to the people for the 
 requisite authority. Another election was accordingly 
 ordered, which was held in June, for a new congress, 
 which was directed to meet on the 8th of July. This 
 
Introduction. 53 
 
 congress was organized on the 9th of July, 1776, at 
 White Plains, and on the same day ratified the Declara- 
 tion of Independence. The next day it changed its name 
 from "The Provincial Congress of the Colony of New 
 York" to the "Convention of the Representatives of the 
 State of New York." By the recent election the Con- 
 vention had received authority sufficient to administer 
 some kind of government while it was preparing a writ- 
 ten constitution. The history of this period will be 
 found in the chapter on the First Constitution, where I 
 have quoted the resolutions of the Convention providing 
 for a temporary government. 
 
 Government during the interval before the adoption 
 of the Constitution was administered sometimes by a 
 convention, and sometimes by committees and councils 
 of safety. There was little ordinary governmental ad- 
 ministration. The Convention could do little, and had 
 little to do beyond conducting necessary military opera- 
 tions, either directly, on behalf of the state, or in con- 
 junction with the Continental Congress. It did, how- 
 ever, borrow large sums of money and issue bills of 
 credit, and pledged the faith of the new state for their 
 payment The principal business of this Convention and 
 of the government which it organized was war for the 
 purpose of actually accomplishing the independence which 
 had been declared. 
 
 The Constitution was adopted on the 20th of April, 
 1777, and went into operation immediately. On the 8th 
 of May following the Convention adopted an ordinance 
 for the purpose of establishing the new government. 
 The text of this ordinance will be found in the second 
 chapter. The extraordinary powers possessed and exer- 
 cised by the first convention were manifested in a pe- 
 culiar manner by the election by the Convention itself of 
 members of assembly and the senate from that part of 
 
54 Constitutional History of New York. 
 
 the state then under British control. This was deemed 
 necessary for the purpose of organizing the new govern- 
 ment. Elsewhere elections were held for members of 
 both branches of the legislature, and also for governor 
 and lieutenant governor. The senate was organized on 
 the 9th, and the assembly on the loth, of September, 
 1777. The judges of the supreme court and various 
 state and county officers had already been appointed by 
 the Convention. The new government was necessarily 
 limited in its territorial jurisdiction, owing to the British 
 occupancy of the southern part of the state. The for- 
 mal organization of the legislature terminated the in- 
 terregnum caused by the suspension of the colonial gov- 
 ernment. 
 
 State Constitutions. 
 
 The history of the state Constitutions will be found in 
 subsequent parts of this work. The text of the Constitu- 
 tions and of various amendments is given in the Intro- 
 duction. I have tried to give every constitutional pro- 
 vision that has ever been in force in this state, and present 
 it in its appropriate relation to other parts of our con- 
 stitutional system. Little need be said here concerning 
 these constitutional provisions, but it may be profitable 
 to mention each Constitution and amendment in its 
 chronological order, with a brief note concerning its gen- 
 eral features. 
 
 1777. the first constitution. 
 
 The framers of this instrument were familiar with 
 constitutional government on the English basis. They 
 had lived under a colonial government which pos- 
 sessed ample powers, with an assembly chosen by 
 
Introduction. 55 
 
 the people, with officers who were, fo^ the most 
 part, selected from their own ntunber, and under 
 which the people possessed a degree of independence 
 which substantially relieved them from direct obli- 
 gation to the Crown, so far, at least, as concerned the 
 ordinary needs and functions of society. All the essen- 
 tial elements of government existed in the colony, and 
 the constitution-makers found there all the forms of 
 government needed for a new state. But it became nec- 
 essary to adapt some of the old forms to new conditions. 
 The people, having declared their own sovereignty, were 
 entitled to select the chief executive, who, under the for- 
 mer system, had been commissioned by sovereign author- 
 ity. It also became necessary to modify the parlia- 
 mentary system, and as a result of this process of recon- 
 struction the House of Lords and the Colonial Council 
 became the state senate. The Constitution was brief, 
 but it described all the necessary elements of government. 
 Many things were doubtless taken for granted, and exist- 
 ing forms and policies of administration were continued 
 without being specifically defined. 
 
 The English Constitution is largely based upon stat- 
 ute law, combined with judicial decisions, customs, forms 
 of procedure, and policies of administration. These ele- 
 ments together make up the unwritten Constitution. I 
 have already quoted Governor Tryon's statement in re- 
 lation to the colonial Constitution, in which the com- 
 mon law and statutes are expressly mentioned as elements 
 of the constitutional system. Nothing in the first Con- 
 stitution evinces a higher degree of wisdom than article 
 35, which continued in force in the new state the Eng- 
 lish common and statute law, and the legislation of the 
 colony, so far as they were applicable under the new form 
 of government. This transferred to the new state the 
 English and colonial legal systems, which were really 
 
56 Constitutional History of New York. 
 
 constitutional systems, and English constitutional gov- 
 ernment, so far as applicable in a republic, became the in- 
 heritance of the new state. This transfer carried with it 
 powers of government and details of administration 
 which, with the new forms established by the Constitu- 
 tion, enabled the statesmen of that period to carry on the 
 new government almost as smoothly as if the Revolution 
 had not occurred. 
 
 Amendments. 
 
 1801. Five amendments were adopted by the Conven- 
 tion of 1801, four of which related to the reorganization 
 of the legislature, and one construed article 23, relating 
 to the powers of the Council of Appointment. 
 
 182 1. THE SECOND CONSTITUTION. 
 
 The previous Constitution and amendments were care- 
 fully revised, and a new Constitution was adopted, more 
 scientific in its arrangement, and more elaborate in its 
 details, than its revolutionary predecessor. 
 
 'Amendments. 
 
 1826. The suffrage article was amended by abrogat- 
 ing all property qualifications, except as to colored voters. 
 
 1826. The method of choosing justices of the peace 
 was changed from appointment by judges of the county 
 court and boards of supervisors to an election by the 
 people of the towns. 
 
 1833. Authorizing a reduction of the duty on salt. 
 
Introduction. 57 
 
 1833. For the election of the mayor of New York by 
 the people. 
 
 1835. Relating to duties on goods sold at auction. 
 
 1839. Providing for the election of mayors in all cities. 
 
 1845. Abrogating property qualifications of public of- 
 ficers. 
 
 1845. Regulating the procedure on the removal of 
 judicial officers. 
 
 1846. THE THIRD CONSTITUTION. 
 
 Many of the provisions in previous Constitutions and 
 amendments were continued, but many new subjects were 
 included, and the whole constitutional system of the state 
 was revised and enlarged. A large part of this Consti- 
 tution is still in force. Its detail may be studied from 
 the text, which appears in a subsequent part of the Intro- 
 duction. 
 
 'Amendments. 
 
 1854. Providing for canal revenues, expenditures, and 
 sinking fund. 
 
 1864. Authorizing absent soldiers and sailors to vote 
 in time of war. 
 
 1867. A constitutional convention met this year and 
 continued its labors until the spring of 1868. It pro- 
 posed a complete Constitution, which was submitted to 
 the people at the November election in 1869. The Con- 
 stitution was all rejected except the judiciary article. 
 The rejected part of this Constitution will be found at 
 the end of the chapter on the Convention of 1867. 
 
 1869. The judiciary article proposed by the Conven- 
 tion of 1867. 
 
58 Constitutional History of New York. 
 
 1872. Relating to the commission of appeals, 
 
 1874. A series of amendments proposed by the Com- 
 mission of 1872, with some modifications by the legisla- 
 ture of 1873. The amendments were included in thirty- 
 four sections, and embraced many new provisions, some 
 of which had been recommended by the Convention of 
 1867. The amendments related to qualifications of 
 voters, bribery at elections, assembly apportionment, com- 
 pensation, powers of the legislature, boards of super- 
 visors, private and local laws, official term and compensa- 
 tion of governor and lieutenant governor, executive con- 
 sideration of bills, the thirty-day period, canal expendi- 
 tures, revenues, and sinking funds, extra compensation, 
 savings banks, state aid, limitation of municipal aid, com- 
 pensation of constitutional officers, oath of office, bribery 
 (new article), and time when amendments take effect. 
 
 1876. Creating the office of superintendent of public 
 works, defining his powers and duties, and abolishing the 
 office of canal commissioner. 
 
 1876. Creating the office of superintendent of state 
 prisons, defining his powers and duties, and abolishing 
 the office of inspector of state prisons. 
 
 1879. Providing for an additional justice of the su- 
 preme court in the second judicial district. 
 
 1880. Authorizing judges of the city court of Brook- 
 lyn to be detailed for service in the supreme court in 
 Kings county. 
 
 1880. Providing for judicial pensions. 
 
 1882. Providing for an additional general term of the 
 supreme court, and for additional justices in several dis- 
 tricts. 
 
 1882. Abolishing canal tolls. 
 
 1882. Authorizing taxation for the payment of the 
 canal debt. 
 
Introduction. 59 
 
 1882. Including the Black River canal in the prohibi- 
 tion against disposing of the canals. 
 
 1884. Limiting and regulating municipal indebtedness. 
 
 1888. Providing for a second division of the court of 
 appeals. 
 
 1894. Authorizing an additional county judge in 
 Kings county. A similar provision was included in the 
 Constitution of 1894, which, by its terms, superseded the 
 independent amendment. 
 
 1894. THE FOURTH CONSTITUTION. 
 
 A general revision proposed by the Convention of 1894, 
 and including several distinct amendments. These relate 
 to drainage of agricultural land, poolselling, code com- 
 missioners (abrogating provisions relating to this sub- 
 ject), actions to recover damages for injuries causing 
 death, qualifications of voters, bribery at elections, in- 
 mates Of public institutions, registration of voters, man- 
 ner of voting, bi-partisan election boards, structure of 
 legislature and apportionment of members, temporary 
 president of senate, manner of passing bills, riders on ap- 
 propriation bills, prison labor, official term of governor 
 and lieutenant governor, gubernatorial succession (add- 
 ing the speaker of the assembly) , changing time of elec- 
 tion of state officers to even numbered years, civil service, 
 reorganization of judicial system (article revised), forest 
 preserve, canal improvement, liability of stockholders of 
 banks, regulation of municipal indebtedness, state board 
 of charities, state commission in lunacy, state commission 
 of prisons, charitable institutions, common schools, re- 
 gents of the university, sectarian aid, coroners (consti- 
 tutional office abolished), terms of county officers in New 
 York and Kings and in any county conterminous with a 
 
6o Constitutional History of New York. 
 
 city, annual meeting of legislature, militia (article re- 
 vised), city laws, elections in certain cities, free passes, 
 and constitutional amendments and conventions. 
 
 Amendments. 
 
 1899. Excepting counties in Greater New York from 
 the provision requiring a board of supervisors in each 
 county. 
 
 1899. Providing for relief of the court of appeals by 
 the appointment of justices of the supreme court to serve 
 therein. 
 
 1899. Authorizing additional justices in the appellate 
 division of the supreme court. 
 
 1899. Relating to indebtedness of counties In Greater 
 New York. 
 
 1 90 1. Prohibiting special laws exempting property 
 from taxation. 
 
 The National Constitution. 
 
 A study of the Constitution of the United States is not 
 within the scope of this work, but it must receive some 
 attention for the obvious reason that every state is a part 
 of the Federal system, and subject to the Federal Consti- 
 tution. The subordination of the states to the Federal 
 Constitution is declared in the provision, article 6, § '2, 
 that 
 
 "This Constitution and the laws of the United States 
 which shall be made in pursuance thereof, and all treaties 
 made, or which shall be made, under the authority of the 
 United States, shall be the supreme law of the land ; and the 
 
Introduction. 6i 
 
 judges in every state shall be bound thereby, anything in the 
 Constitution or laws of any state to the contrary notwith- 
 standing." 
 
 Therefore every state Constitution and every state stat- 
 ute must be tested by its provisions. Neither the legis- 
 lature of a state, nor the people themselves, in their col- 
 lective capacity, can enact any law or constitutional pro- 
 vision which will not bear this test. The fourth volume 
 contains numerous references to judicial decisions, state 
 and Federal, in which New York statutes are tested by 
 the Federal Constitution. Notes of such decisions are 
 indispensable in a constitutional history which aims to 
 consider all aspects of constitutional construction made 
 necessary by the action of the state, either through its leg- 
 islature or directly by the people. The Federal Consti- 
 tution and the amendments to it are given in the Intro- 
 duction, with notes showing the action of New York in 
 relation to each of them. 
 
 The same course has been followed in relation to the 
 Articles of Confederation. New York joined the move- 
 ment for independence at its inception, and adhered to 
 the cause without interruption until the object sought was 
 finally consummated by the creation of a new nation. 
 New York was a willing member of the Confederation, 
 and promptly ratified the articles intended to provide a 
 scheme of union and some provision for an effective ad- 
 ministration. The state even went farther, and when it 
 became manifest that the approval of the Articles of Con- 
 federation by all the states could not be secured without 
 great delay. New York consented to be bound by them 
 without such unanimous approval. By the notes on this 
 subject, taken in connection with the notes showing the 
 action of the state on the Federal Constitution and 
 amendments, and the judicial decisions collated in the 
 
62 Constitutional History of New York. 
 
 fourth volume, I have tried to present a complete view of 
 the history of the state, so far as it relates to the national 
 constitutional system. 
 
 Conclusion. 
 
 New York is almost old enough to have ancient his- 
 tory. Two hundred and eighty years elapsed between 
 the first positive written directions concerning govern- 
 ment in the colony, which were contained in the Dutch 
 West India Company's charter of 162 1, and the latest 
 constitutional amendment, which was adopted in 1901. 
 Of this long period one hundred and fifty-six years are 
 covered by the time prior to the adoption of the first state 
 Constitution, and the remaining one hundred and twenty- 
 four years are included in the time subsequent to the 
 adoption of that instrument, and prior to the latest 
 amendment.* 
 
 But our constitutional history is older than the charter 
 to the Dutch West India Company. English legal writ- 
 ers say that Magna Charta is the basis of the English 
 Constitution. As the basis of that Constitution it be- 
 came the basis of the colonial Constitution, and later of 
 the state Constitution. An examination of that great 
 charter, which follows (page 64), will show that, while 
 many of its provisions were temporary, many others were 
 fundamental, and have endured, either in form or in prin- 
 ciple, through all subsequent developments of popular 
 government. The chief feature of that instrument, so 
 far as modern political institutions are concerned, is the 
 39th article, which protects citizens in the enjoyment of 
 their private rights. The Duke of York expressly im- 
 posed on Governor Dongan, in 1682, the duty of observ- 
 ing this provision, and it was incorporated in the Char- 
 
 ♦See volume IV. for amendments submitted in 1905. 
 
Introduction. 63 
 
 ter of Liberties of 1683 and also in the new charter of 
 1 69 1. It has had a place in all our state Constitutions, 
 and it may be called the connecting link between consti- 
 tutional liberty, as now enjoyed in 1905, and the liberty 
 granted by a reluctant king to the people of England in 
 1215. 
 
 Various aspects of colonial constitutional history are 
 presented in different parts of this work, in connection 
 with specific subjects, but such a presentation is necessarily 
 fragmentary. I have therefore sought to give, as briefly 
 as seemed practicable, a statement of the principles and 
 rules which constituted the colonial Constitution, with 
 sufficient elucidation to show the relations of different 
 sovereigns, governments, and public officers to the sub- 
 ject. It is believed that, with the foregoing synopsis, 
 and the charters, Constitutions, and amendments which 
 follow this note, the reader will be able easily to trace 
 the various steps that have marked the progress of consti- 
 tutional government in New York. 
 
64 Constitutional History of New York. 
 
 MAGNA CHARTA. 
 
 The Great Charter of English Liberties, which, for 
 nearly seven centuries, has been the foundation of the 
 free institutions we now enjoy, may appropriately be 
 given the place of honor in a work devoted to a study of 
 the principles which underlie and regulate the govern- 
 ment of the greatest of American states. Many books 
 have been written on Magna Charta, and it has been a 
 fruitful source of speculation and discussion, and the oc- 
 casion of the most profound study and research. It has 
 engaged the attention of great jurists like Blackstone and 
 Coke, and of statesmen, historians, and essayists almost 
 without number. It possesses a fascinating interest 
 which cannot fail to arouse the enthusiasm of every 
 thoughtful student of political and social institutions. It 
 is not my purpose to present here a history of Magna 
 Charta, but it seems proper to refer to a few facts which 
 may be of interest to the reader as a prelude to the docu- 
 ment itself. 
 
 It is a matter of common knowledge that the Charter 
 was granted by King John as the result of a long contro- 
 versy between himself and the barons of England, involv- 
 ing royal encroachments on one side, and on the other 
 numerous and comprehensive demands for a larger meas- 
 ure of popular liberty. While these demands were pre- 
 sented and enforced by the barons, they were sustained 
 by the people themselves, and the barons were only the in- 
 struments or agents of the people in procuring the liber- 
 ties guaranteed by the Charter. Without going into de- 
 tail concerning the protracted negotiations between the 
 King and the barons, it is sufficient to say here that soon 
 after Easter, in the year 12 15, the barons presented to the 
 King their demands in the form of articles, to which they 
 
Magna Charta. 65 
 
 required the King's assent. These Articles are given be- 
 low, preceding the Charter. While they were in complete 
 form, they were apparently intended only as a rough 
 draft or as heads for a charter. The King rejected the 
 Articles, and refused to accede to the demands made by 
 the barons. The barons thereupon declared war, and 
 marched upon London, arriving there May 24, 12 15. 
 Events hastened rapidly, and on the 5th of June, 12 15, 
 the King by appointment met the barons at Runnymede 
 (council meadow), a large tract of meadow land between 
 Staines and Windsor, and here, on the 1 5th, granted the 
 Great Charter which had been prepared by the barons and 
 was there presented to the King. It amplified and stated 
 in more elaborate language the demands contained in the 
 Articles. The Articles and the Charter are preserved in 
 the British Museum in London. 
 
 It seems that several copies or drafts of the Charter 
 were made at or about the time it was granted, and there 
 appear to be some differences in these copies. The Eng- 
 lish Record Commission, which was charged, among 
 other things, with the dutj of examining early English 
 documents and records, in the appendix to its report sub- 
 mitted to Parliament June 2, 1812, gives an interesting 
 account of its researches in connection with the great 
 charters of England, and it is there stated that a sub- 
 commission visited every place where it appeared that any 
 of the ancient records were preserved. The commission- 
 ers say that they have published all the charters, and that 
 the collection thus presented is as complete as the most 
 careful examination could produce, and much more com- 
 plete than any other which had then been published, not 
 excepting Sir William Blackstone's collection, which the 
 commissioners say was imperfect in several particulars. 
 The commissioners express the opinion that the charter 
 Vol. I. Const. Hist.— 5. 
 
66 Constitutional History of New York. 
 
 found in Lincoln Cathedral is the most authentic. I 
 quote from the report : 
 
 "In Lincoln Cathedral, an original of the Great Char- 
 ter of Liberties, granted by King John, in the seventeenth 
 year of his reign, is preserved in a perfect state. This 
 Charter appears to be of superior authority to either of 
 the two Charters of the same date, preserved in the Brit- 
 ish Museum. From the contemporary indorsement and 
 the MTord Lincolnia on the folds of the Charter, this may 
 be presumed to be the Charter transmitted by the hands 
 of Hugh, the then Bishop of Lincoln, who is one of the 
 Bishops named in the introductory clause; it is observ- 
 able that several words and sentences are inserted in the 
 body of this Charter, which, in both the Charters pre- 
 served in the British Museum, are added by way of notes 
 for amendment, at the bottom of the Instrument." 
 
 Mr. Richard Thomson, an eminent English antiquary, 
 who published an exhaustive work on Magna Charta in 
 1829 under the patronage of the Earl of Spencer, follows 
 the Commission. On these authorities, including the 
 opinion of the Record Commission, which is official, I 
 am justified, I think, in using the Lincoln draft in this 
 work, and have therefore adopted Mr. Thomson's trans- 
 lation of the Articles and of the Charter. 
 
Magna Charta. 67 
 
 TRANSLATION OF THE ARTICLES 
 
 OF THE 
 
 GREAT CHARTER OF LIBERTIES, 
 
 UNDER THE 
 
 SEAL OF KING JOHN. 
 
 [The Roman numerals which are placed against each of the fol- 
 lowing articles divide them into forty-nine distinct heads, for the 
 convenience of reference. The Arabic figures, which are also placed 
 at the commencement of each article, refer to that chapter of King 
 John's Great Charter in which the contents of every division are to 
 be found. The same rule is also to be observed in the numbers of 
 reference, from the Charter back to the original Articles.] 
 
 These are the particulars of what the Barons petition, 
 and our Lord the King grants. 
 
 I. (2) After the death of an Ancestor, the Heir of 
 full age shall have his inheritance by the ancient Relief, 
 as expressed in the Charter. 
 
 II. (3) An Heir who is under age, and who is in 
 guardianship, when he comes to age shall have his in- 
 heritance without Relief or Fine. 
 
 III. (4) The Keeper of an Heir's land shall take only- 
 reasonable issues, customs, and services, without de- 
 struction or waste of the men or goods ; and if the Keeper 
 of such land shall make destruction or waste, he shall be 
 dismissed from that guardianship; (5) and the Keeper 
 shall maintain the houses, parks, fish-ponds, mills, and 
 other things which belong to the land, or to the rents 
 thereof; (6) and that Heirs shall be married without dis- 
 paragement, so that it be by the advice of them that are 
 nearest of kin. 
 
 IV. (7) No Widow shall give any thing for her 
 Dower or Marriage, after the decease of her husband: 
 but she may remain within his house for forty days after 
 
68 Constitutional History of New York. 
 
 his death; and within that term they shall be assigned 
 her, and she shall have in the same place her Dower, and 
 her Marriage-portion, and her Inheritance. 
 
 V. (9) The King nor his Bailiffs shall not seize upon 
 any land for debt while there are sufficient goods of the 
 Debtor's; nor shall the Securities of a Debtor be dis- 
 tressed, so long as the principal Debtor be solvent: but 
 if the principal Debtor fail in payment, the Securities, 
 if they be willing, shall have the lands of the Debtor 
 until they shall be repaid; unless the principal Debtor 
 can show himself to be acquitted thereof from the 
 Securities. 
 
 VI. (15) The King shall not grant to any of his 
 Barons, that he shall take aid of his Free-men, unless it 
 be for the redeeming of his own body, for the making 
 of his eldest son a Knight, and once for marrying his 
 eldest daughtef ; and this shall be done by a reasonable 
 aid. 
 
 VII. (16) No one shall do more service for a 
 Knight's-fee than that which is due from thence. 
 
 VIII. (17, 18) That Common Pleas shall not follow 
 the Court of our Lord the King, but shall be assigned 
 to any certain place; and that recognitions shall be taken 
 in their same Counties in this rrranner: that the King 
 shall send two Justiciaries four times in the year, who, 
 with four Knights of the same County, elected by the 
 people thereof, shall hold Assizes of Novel Disseisin, 
 Morte d'Ancestre, and Last Presentation; nor shall any 
 be summoned for this, unless they be Jurors, or of the 
 two parties. 
 
 IX. (20) That a Free-man shall be amerced for a 
 small fault according to the degree of the fault ; and for 
 a greater crime according to it's magnitude, saving to 
 him his Contenement; a Villian also shall be amerced in 
 the same manner, saving his Wainage; and a Merchant 
 
Magna Charta. 69 
 
 in the same manner, saving his Merchandise; by the oath 
 of faithful men of the neighborhood. 
 
 X. (22) That a Clerk shall be fined according to his 
 Lay-fee in the manner aforesaid, and not according to 
 his Ecclesiastical benefice. 
 
 XI. (23) No Town shall be amerced for the making 
 of Bridges for river's banks, unless they shall of right 
 have been anciently accustomed to do so. 
 
 Xli. (35) That the Measure of Corn, Wine, the 
 breadth of cloth, and other things be amended; and the 
 same of Weights. 
 
 XIII. (19) That the Assizes of Novel Disseisin and 
 Morte d'Ancestre be shortened, and made like to other 
 Assizes. 
 
 XIV. (24) That no Sheriff shall, of himself, enter 
 into Pleas belonging to the Crown, without the Crown's 
 authority; (25) and that Counties and Hundreds shall 
 be at the Ancient Ferme without increase, unless they 
 be the Manors of our Lord the King. 
 
 XV. (26) If any who hold of the King shall die, 
 although a Sheriff or other Officer of the King shall 
 seize and register his goods by the view of lawful men, 
 yet nothing shall be removed until it be fully known if 
 he owed any thing, and his debts to our Lord the King 
 shall be cleared; then, when the whole of the King's 
 debts are paid, the remainder shall be given up to his 
 executors, to do according to the will of the deceased; 
 and if he should not owe any thing to the King, all the 
 goods of the deceased shall be restored. 
 
 XVI. (27) If any Free-man shall die intestate, his 
 goods shall be distributed by his nearest of kindred and 
 his friends, and by the view of the Church. 
 
 XVII. (8) No Widow shall be obliged to marry 
 while she is willing to live without an husband : so that 
 she will give security that she will not marry without the 
 
70 Constitutional History of New York. 
 
 consent of the King, if she hold of the King, or that of 
 the Lord of whom she does hold. 
 
 XVIII. (28) No Constable nor other Officer shall 
 take com or other goods, unless he shall presently render 
 payment ; or unless he can have respite by the will of the 
 seller. 
 
 XIX. (29) No Constable can distrain any Knight to 
 give money for Castle-guard, if he be willing to keep it 
 in his own Person, or by any other true man, if he shall 
 not be able to do so by any reasonable cause; and if the 
 King shall have sent him into the Army, he shall be free 
 from Castle-guard for that space of time. 
 
 XX. (30) No Sheriff nor Bailiff of the King nor any 
 other, shall take horses or carts of any Free-man, for 
 carriage, unless it be by his own will. 
 
 XXI. (31) Neither the King nor his Bailiffs shall 
 take another man's timber for castles or for any other 
 uses, unless it be by the will of him to whom the timber 
 was belonging. 
 
 XXII. (23) The King shall not hold the lands of 
 them that have been convicted of felony, more than one 
 year and one day, and then he shall give them up to the 
 Lord of the fee. 
 
 XXIII. (33) That all Wears for the time to come 
 shall be destroyed in the Rivers of Thames and Medway, 
 and throughout all England. 
 
 XXIV. (34) No Writ called Precipe, shall for the 
 future be granted to any one of any tenement, whereby 
 a Free-man may lose his cause. 
 
 XXV. (52) If any one have been dispossessed or 
 deprived by the King without judgment of his lands, 
 his liberties, or his rights, they shall immediately be 
 restored; and if any contention should arise upon that 
 subject, then shall it be decided by the judgment of 
 twenty-five Barons; and that those who were disseised 
 
Magna Charta. yi 
 
 by the Kings our Father or our Brother, shall have right 
 without delay, according to the judgment of their Peers 
 in the King's Courts; and if the King oweth any thing 
 he shall have until the common term of the Crusaders, 
 and then the Archbishop and Bishops shall cause justice 
 to be done, and a certain day to be named for the debt 
 being cleared. 
 
 XXVI. (36) Not any thing shall be given for a Writ 
 of Inquisition of life or limb, but it shall be granted 
 freely, without price, and not be denied. 
 
 XXVII. (37) If any hold of the King by Fee-farm, 
 by Socage, or by Burgage, and of another by Knight's- 
 service, our Lord the King shall not have the custody 
 of the other's Knight' s-Fee, by reason of the Socage or 
 Burgage nor will We hold the custody of the Burgage, 
 Socage, or Fee-farm; — and that a Free-man shall not 
 loose his Knight's-fee by reason of Petit-Sergeantry, 
 such as of them that hold another tenement by giving 
 for it knives, arrows, or the like. 
 
 XXVIII. (38) No Bailiff can put any one to his Law 
 upon his single accusation, without sufficient witnesses. 
 
 XXIX. (39) No Free-man's body shall be taken, nor 
 imprisoned, nor disseised, nor outlawed, nor banished, 
 nor in any ways be damaged, nor shall the King send 
 him to prison by force, excepting by the judgment of 
 his Peers and by the Law of the land. 
 
 XXX. (40) No right shall be sold, delayed, or 
 denied. 
 
 XXXI. (41) That Merchants shall have safety to go 
 and come, buy and sell, without any evil tolls, but by 
 ancient and honest customs. 
 
 XXXII. (12) No Scutage nor aid shall be imposed 
 on the Kingdom, excepting by the Common Council of 
 the Kingdom; unless it be to redeem the King's body, 
 to make his eldest son a Knight, and once to marry his 
 
72 Constitutional History of New York. 
 
 eldest daughter; and that to be a reasonable aid: — and 
 in like manner shall it be concei-ning the Taillage and 
 aids of the City of London ; and of other Cities, which 
 from this time shall have their liberties; and that the 
 City of London shall fully have all its liberties and free 
 customs, as well by water as by land. 
 
 XXXIII. (42) That it shall be lawful for any one 
 to go out of the Kingdom and return again, saving his 
 allegiance to our Lord the King, unless in time of war, 
 by some short space for the common benefit of the 
 Kingdom. 
 
 XXXIV. (10) If any one have borrowed any thing 
 of the Jews, more or less, and shall die before they have 
 cleared that debt, there shall be no interest paid for that 
 debt so long as the Heir is under age, of whomsoever he 
 may hold; and if the debt shall fall into the King's 
 hands, the King shall take only the chattel which is 
 contained in the Charter. 
 
 XXXV. (11) If any one die indebted to the Jews, 
 his Wife shall have her Dower ; and if he shall have left 
 children, they shall have necessaries provided for them 
 according to his tenement,' and out of the residue the 
 debt shall be paid, saving the service of the Lords. ( 5 ) 
 In like' ra?inner shall it be with other debts, and that 
 guardians of land shall give to the Heir when he shall 
 come to full age, his land stocked according to what the 
 same can reasonably bear, and the land shall require, 
 with ploughs and carriages. 
 
 XXXVI. (43) If any man hold of us any Escheat, 
 such as the Honour of Wallingford, Nottingham, Bo- 
 logne, or Lancaster, or of any other Escheats which are 
 in the King's hands and are Baronies, and dies, his Heir 
 shall not give any other Relief nor do to the King any 
 other service than he would do to the Baron; and that 
 
Magna Charta. 73 
 
 the King shall hold it in the same manner as if the Baron 
 held it. 
 
 XXXVII. (55) That Fines which are made for 
 Dowers, the Marriages of Heirs, and unjust amercia- 
 ments against the Law of the land, shall be either en- 
 tirely forgiven, or else left to be decided by the judg- 
 ment of the twenty-five Barons, or by the decision of 
 the greater part of them, with one Archbishop and others 
 whom he shall b^ willing to call with him; but so, that 
 if any one or any of the twenty-five shall be concerned 
 in the cause, they shall be removed, and others be sub- 
 stituted in their places by the remainder of the twenty- 
 five. 
 
 XXXVIII. (49) That the Hostages and engage- 
 ments which were given to the King as security shall 
 be delivered up. 
 
 XXXIX. (44) That they who dwell without the 
 Forest shall not appear before the Justiciaries of the 
 Forests upon a common summons, unless they are im- 
 pleaded or are securities; (48) and that irregular cus- 
 toms of Forests and of Foresters, and Warrenners, and 
 Sheriffs, and Keepers of Rivers, shall be amended by 
 twelve Knights of the same Shire, who ought to be 
 elected by true men of the same Shire. 
 
 XL. (50) That the King shall remove from his 
 Bailiwicks the relations and all the followers of Gerard 
 de Athyes, so that for the future they shall not hold a 
 Bailiwick; they are namely, Engelard, Andrew, Peter, 
 and Gyon de Chancell, Gyon de Cygony, Matthew de 
 Martin, and his brother, and Walter, his nephew, and 
 Philip Mark. 
 
 XLI. (51) That the King shall remove all Foreign 
 Knights, Stipendiaries, Crossbowmen, Infringers, and 
 Servitors who came with horses and arms to the injury 
 of the kingdom. 
 
74 Constitutional History of New York. 
 
 XLII. (45) That the King shall make Justiciaries, 
 Sheriffs, and Bailiffs of such as know the Law of the 
 Land, and are disposed duly to observe it. 
 
 XLIII. (46) That Barons who have founded Abbies, 
 and hold them by Charters from the King, or by ancient 
 tenure, shall have the custody of them when they shall 
 be vacant. 
 
 XLIV. (56) If the King have diseised or dispos- 
 sessed the Welsh of lands or liberties, or other things 
 in England or in Wales, they shall immediately, with- 
 out plea, be restored; and if they were disseised or dis- 
 possessed of their English tenements by the King's 
 father or brother, without judgment of their Peers, he 
 shall, without delay, do them justice according to the 
 manner of justice in England; for their English tene- 
 ments according to the English Law, for their Welsh 
 tenements according to the Law of Wales, and for tene- 
 ments in the Marches according to the Law of the 
 Marches; the same shall the Welsh do to the King and 
 to his subjects. 
 
 XLV. (58) That the King shall give up the son of 
 Llewellin ; and moreover all the Hostages of Wales, and 
 the engagements which they have entered into for the 
 security of the peace. 
 
 XLVI. (59) That the King shall treat with the King 
 of Scots, on the restoring of his Hostages, and his rights 
 and liberties, according to the same form as he shall do 
 with the Barons of England, unless it ought to be other- 
 wise by the engagements which the King hath entered 
 into, and this shall be decided by the judgment of the 
 Archbishop, and others, whom he shall think proper to 
 call with him. 
 
 XLVII. (47) And all Forests which have been af- 
 forested by the King in his time, shall be disforested, 
 
Magna Charta. 75 
 
 and the same shall be done with rivers which have been 
 fenced by the King himself. 
 
 XL VIII. (60) All the aforesaid customs and liberties 
 which the King hath conceded aife to be holden in the 
 Kingdom, as much as belongs to him; therefore all his 
 subjects of the realm, as well Ecclesiastics as Laity, shall 
 observe them, inasmuch as they are concerned, from 
 themselves towards their dependants. 
 
 XLIX. (61) This is the form of security for the 
 observance of the peace and liberties between the King 
 and the Kingdom. That the Barons may elect twenty- 
 five Barons of the Kingdom, whom they will, who shall 
 take care with all their might to hold and observe, and 
 cause to be observed, the peace and liberties which our 
 Lord the King hath conceded, and by his Charter hath 
 confirmed ; so that, namely, if the King or the Justiciaries 
 or Bailiffs of the King, or any of his Ministers shall in 
 any case fail in the performance of them towards any 
 person, or shall break through these Articles of peace 
 and security, and the offense be notified to four Barons 
 of the aforesaid five and twenty, they, the four Barons, 
 shall go to our Lord the King, or to his Justiciary, if 
 the King shall be out of the Kingdom, and, laying open 
 the grievance, shall petition to have it redressed with- 
 out delay; and if the King shall not amend it, or his 
 Justiciary shall not amend it for him, if the King shall 
 be out of the Kingdom, within a reasonable time, de- 
 termined upon in the aforesaid Charter, — the four 
 Barons shall refer the case to the remainder of the 
 twenty-five, and they, the twenty-five, with the whole 
 community of the land, shall distrain and distress the 
 King by all the means which they can; that is to say, 
 by taking his Castles, Lands, Possessions, and in every 
 other manner which they can, until amendment shall be 
 made according to their decision, saving the persons of 
 
jS Constitutional History of New York. 
 
 the King and Queen and of their children, and when 
 the grievance shall be redressed, they shall obey our 
 Lord the King as before; and whosoever of the King- 
 dom is willing, may swear to obey the orders of the 
 aforesaid five and twenty Barons, and harrass the King 
 with them to the extent of his power, and the King shall 
 give public and free leave to any to swear to them that 
 are willing to swear; and he shall not prohibit any from 
 swearing; also, all those of the land who of themselves 
 and of their own accord will not swear to join with the 
 five and twenty Barons, to distrain and distress the 
 King, the King shall make them swear to the same such 
 as is aforesaid, by his command. Also, if any of the 
 aforesaid five and twenty Barons shall die or remove 
 from the land, or by any other way be prevented from 
 putting the things aforesaid into execution, the five and 
 twenty may elect another in his place, by their own 
 decision, who shall be sworn in a similar way with the 
 rest. Also in all things that are committed to the charge 
 of these five and twenty Barons, if, when they be all 
 assembled, and between themselves they should disagree 
 upon anything, or some of them when called cannot or 
 will not come, whatever be agreed upon by the greater 
 part, shall be as firm and valid as if all the five and 
 twenty had given their consent; and the aforesaid five 
 and twenty shall swear that all the aforesaid they will 
 faithfully observe, and will cause to be observed, with 
 their whole power. (63) Moreover, the King shall 
 make them secure by the engagements of the Arch- 
 bishops and Bishops, and of Master Pandulph, that he 
 will not procure from our Lord the Pope any thing by 
 which any part of this Covenant shall be revoked or 
 lessened, and if any such thing be obtained, let it be con- 
 sidered as null and void. 
 
Magna Charta. jy 
 
 MAGNA CHARTA, 
 
 OR 
 
 THE GREAT CHARTER OF KING JOHN, 
 
 Granted June isth^ a. d. 1215. 
 IN THE Seventeenth Year of His Reign. 
 
 {Translated from the original, preserved in the archives 
 of Lincoln Cathedral.) 
 
 [Note. — ^The original is not in paragraphs. For convenience of 
 reference the charter is here presented in paragraphs, to each of 
 which I have prefixed a title. C. Z. L.] 
 
 [Introduction.] — John, by the Grace of God, King 
 of England, Lord of Ireland, Duke of Normandy and 
 Aquitaine, and Earl of Anjou, to his Archbishops, 
 Bishops, Abbots, Earls, Barons, Justiciaries, Foresters, 
 Sheriffs, Governors, Officers, and to all Bailiffs, and his 
 faithful subjects, — Greeting. Know ye, that We, in the 
 presence of God, and for the salvation of our own soul, 
 and of the souls of all our ancestors, and of our heirs, 
 to the honour of God, and the exaltation of the Holy 
 Church and amendment of our Kingdom, by the counsel 
 of our venerable fathers, Stephen, Archbishop of Can- 
 terbury, Primate of all England, and Cardinal of the 
 Holy Roman Church, Henry, Archbishop of Dublin, 
 William of London, Peter of Winchester, Joceline of 
 Bath and Glastonbury, Hugh of Lincoln, Walter of 
 Worcester, William of Coventry, and Benedict of 
 Rochester, Bishops; Master Pandulph, our Lord the 
 Pope's Subdeacon and familiar, Brother Almeric, Master 
 of the Knights-Templars in England, and of these noble 
 persons, William Mareschal, Earl of Pembroke, William, 
 Earl of Salisbury, William, Earl of Warren, William, 
 
78 Constitutional History of New York. 
 
 Earl of Arundel, Alan de Galloway, Constable of Scot- 
 land, Warin Fitz-Gerald, Hubert de Burgh, Seneschal 
 of Poictou, Peter Fitz-Herbert, Hugh de Nevil, Mat- 
 thew Fitz-Herbert, Thomas Basset, Alan Basset, Philip 
 de Albiniac, Robert de Roppel, John Mareschal, John 
 Fitz-Hugh, and others our liegemen; have, in the First 
 place, granted to God, and by this present Charter, have 
 confirmed, for us and our heirs forever : — 
 
 (I.) [English church to be free.] — That the Eng- 
 lish Church shall be free, and shall have her whole rights 
 and her liberties inviolable; and we will this to be ob- 
 served in such a manner, that it may appear from thence, 
 that the freedom of elections, which was reputed most 
 requisite to the English Church, which we granted, and 
 by our Charter confirmed, and obtained the Confirma- 
 tion of the same, from our Lord Pope Innocent the 
 Third, before the rupture between us and our Barons, 
 was of our own free will; which Charter we shall ob- 
 serve, and we will it to be observed with good faith, by 
 our heirs forever. 
 
 (II.) [Liberties granted.] — We have also granted 
 to all the Freemen of our Kingdom, for us and our 
 heirs for ever, all the underwritten Liberties, to be 
 enjoyed and held by them and by their heirs, from us 
 and from our heirs. 
 
 (II.i) [Relief of heirs under rhilitary service.] — 
 If any of our Earls or Barons, or others who hold of 
 us in chief by military service, shall die, and at his death 
 his heir shall be of full age, and shall owe a relief, he 
 shall have his inheritance by the ancient relief; that is 
 to say, the heir or heirs of an Earl, a whole Earl's 
 Barony for one hundred pounds; the heir or heirs of a 
 Baron for a whole Barony, by one hundred pounds ; the' 
 heir or heirs of a Knight, for a whole Knight's Fee, by 
 
Magna Charta. 79 
 
 one hundred shillings at most; and he who owes less 
 shall give less, according to the ancient custom of fees. 
 
 (III.2) [Relief for minors or wards.] — But if the 
 heir of any such be under age, and in wardship, when 
 he comes to age he shall have his inheritance without 
 relief and without fine. 
 
 (IV.3) [Warden's duties over minor's lands regu- 
 lated.] — The warden of the land of such heir who 
 shall be under age shall not take from the lands of the 
 heir any but reasonable issues, and reasonable customs, 
 and reasonable services, and that without destruction 
 and waste of the men or goods; and if we commit the 
 custody of any such lands to a Sheriff, or any other 
 person who is bound to us for the issues of them, and 
 he shall make destruction or waste upon the ward-lands, 
 we will recover damages from him, and the lands shall 
 be committed to two lawful and discreet men of that 
 fee, who shall answer for the issues to us, or to him to 
 whgm we have assigned them. And if we shall give 
 or sell to any one the custody of any such lands, and 
 he shall make destruction or waste upon them, he shall 
 lose the custody; and it shall be committed to two law- 
 ful and discreet men of that fee, who shall answer to us 
 in like manner as it is said before. 
 
 (V.) [Warden to maintain property.] — But the 
 warden, as long as he hath the custody of the lands, 
 shall keep up and maintain the houses, parks, warrens, 
 ponds, mills, and other things belonging to them, out of 
 their issues; (35) and shall restore to the heir when he 
 comes of full age, his whole estate, provided with 
 ploughs and other implements of husbandry, according 
 as the time of Wainage shall require, and the issues of 
 the lands can reasonably afford. 
 
 (VI. 3) [Marriage of heirs.] — Heirs shall be mar- 
 ried without disparagement, so that before the marriage 
 
8o Constitutional History of New York. 
 
 be contracted, it shall be notif.8d to the relations of the 
 heir by consanguinity. 
 
 (VII.4.) [Widow's dower. J — A widow, after the 
 death of her husband, shall immediately, and without 
 difficulty, have her marriage and her inheritance; nor 
 shall she give anything for her dower, or for her mar- 
 riage, or for her inheritance, which her husband and 
 she held at the day of his death; and she may remain 
 in her husband's house forty days after his death, within 
 which time her dower shall be assigned. 
 
 (VIII. 17. ) [Widow's remarriage.] — No widow shall 
 be distrained to marry herself, while she is willing 
 to live without a husband ; but yet she shall give security 
 that she will not marry herself without our consent, if 
 she hold of us, or without the consent of the lord of 
 whom she does hold, if she hold of another. 
 
 (IX. 5) [Debtor's privileges; surety's rights.] — 
 Neither we nor our Bailiffs will seize any land or rent 
 for any debt, while the chattels of the debtor are suffi- 
 cient for the payment of the debt; nor shall the sureties 
 of the debtor be distrained, while the principal debtor 
 is able to pay the debt; and if the principal debtor fail 
 in payment of the debt, not having wherewith to 
 discharge it, the sureties shall answer for the debt; and 
 if they be willing, they shall have the lands and rents 
 of the debtor, until satisfaction be made to them for 
 the debt which they had before paid for him, unless the 
 principal debtor can shew himself acquitted thereof 
 against the said sureties. 
 
 (X.34) [Debts to Jews.] — If any one hath bor- 
 rowed any thing from the Jews, more or less, and die 
 before that debt be paid, the debt shall pay no interest 
 so long as the heir shall be under age, of whomsoever 
 he may hold; and if that debt shall fall into our hands. 
 
Magna Charta. 8i 
 
 we will not take any thing except the chattel contained 
 in the bond. 
 
 (XI.35)Y[Dowress preferred to Jewish creditor.] — 
 
 And if any one shall die indebted to the Jews, his wife 
 shall have her dower and shall pay nothing of that debt ; 
 and if children of the deceased shall remain who are 
 under age, necessaries shall be provided for them, ac- 
 cording to the tenement which belonged to the deceased ; 
 and out of the residue the debt shall be paid, saving the 
 rights of the lords (of whom the lands are held). In 
 like manner let it be with debts owing to others than 
 Jews. 
 
 (XII.32) [Aids and scutages regulated.] — No scu- 
 tage nor aid shall be imposed in our kingdom, unless 
 by the common council of our kingdom; excepting to 
 redeem our person, to make our eldest son a knight, and 
 once to marry our eldest daughter, and not for these, 
 unless a reasonable aid shall be demanded. 
 
 (XIII.) [Municipal liberties guaranteed.] — In like 
 manner let it be concerning the aids of the City of Lon- 
 don. And the City of London should have all it's an- 
 cient liberties, and it's free customs, as well by land as 
 by water. Furthermore, we will and grant that all 
 other Cities, and Burghs, and Towns, and Ports, should 
 have all their liberties and free customs. 
 
 (XIV.) [Council for aids and scutages to be sum- 
 moned.] — And also to have the common council of 
 the kingdom, to assess and aid, otherwise than in the 
 three cases aforesaid; and for the assessing of scutages, 
 we will cause to be summoned the Archbishops, Bishops, 
 Abbotts, Earls, and great Barons, individually, by our 
 letters. And besides, we will cause to be summoned in 
 general by our Sheriffs and Bailiffs, all those who hold 
 of us in chief, at a certain day, that is to say at the 
 distance of forty days, (^before their meeting,) at the 
 Vol. I. Const. Hist.— 6. 
 
82 Constitutional History of New York. 
 
 least, and to a certain place; and in all the letters of 
 summons, we will express the cause of the summons; 
 and the summons being thus made, the business shall 
 proceed on the day appointed, according to the counsel 
 of those who shall be present, although all who had been 
 summoned have not come. 
 
 (XV.6) [Aids from freemen regulated.] — We will 
 not give leave to any one, for the future, to take an aid 
 of his own free-men, except for redeeming his own body, 
 and for making his eldest son a knight, and for marry- 
 ing once his eldest daughter; and not that unless it be 
 a reasonable aid. 
 
 (XVI.7) [Knight service regulated.] — None shall 
 be distrained to do more service for a Knight' s-Fee, nor 
 for any other free tenement, than what is due from 
 thence. 
 
 (XVIL8) [Common pleas not to follow King's 
 court.] — Common Pleas shall not follow our court, 
 but shall be held in any certain place. 
 
 (XVIII.) [Certain judicial proceedings regulated.] 
 — Trials upon the Writs of Novel Disseisin^ of 
 Mart d'Ancestre (death of the ancestor), and Darrein 
 Presentment (last presentation), shall not be taken but 
 in their proper counties, and in this manner: We, or 
 our Chief Justiciary, if we are out of the kingdom, will 
 send two Justiciaries into each county, four times in 
 the year, who, with four knights of each county, chosen 
 by the county, shall hold the aforesaid assizes, within 
 the county, on the day, and at the place appointed. 
 
 (XIX. 13) [Assizes must hear all causes.] — And if 
 the aforesaid assizes cannot be taken on the day of the 
 county-court, let as many knights and freeholders, of 
 those who were present at the county-court, remain 
 
Magna Charta. 83 
 
 behind, as shall be sufficient to do justice, according to 
 the great or less importance of the business. 
 
 (XX.9) [Amerciaments to be reasonable.] — A 
 free-man shall not be amerced for a small offense, but 
 only according to the degree of the offence; and for a 
 great delinquency, according to the magnitude of the 
 delinquency, saving his contenement; a Merchant shall 
 be amerced in the same manner, saving his merchandise, 
 and a villain shall be amerced after the same manner, 
 saving to him his Wainage, if he shall fall into our 
 mercy; and none of the aforesaid amerciaments shall be 
 assessed, but by the oath of honest men of the vicinage. 
 
 (XXI.) [Amerciament of Barons and Earls.] — 
 Earls and Barons shall not be amerced but by their 
 Peers, and that only according to the degree of their 
 delinquency. 
 
 (XXII. 10) [Amerciament of clerks.] — No Clerk 
 shall be amerced for his lay-tenement, but according to 
 the manner of the others as aforesaid, and not according 
 to the quantity of his ecclesiastical benefice. 
 
 (XXIII.ii) [No distraint for nevr bridges or em- 
 bankments.] — Neither a town nor any person shall 
 be distrained to build bridges or embankments, except- 
 ing those which anciently, and of right, are bound to 
 do it. 
 
 (XXIV. 14) [Crown pleas not to be held by certain 
 officers.] — No Sheriff, Constable, Coroners, nor other 
 of our Bailiffs, shall hold pleas of our crown. 
 
 (XXV.) [Certain ancient rents preserved.] — All 
 Counties, and Hundreds, Trethings, and Wapentakes, 
 shall be at the ancient rent, without any increase, ex- 
 cepting in our Demesne-manors. 
 
 (XXVI. 1 5) [Crovyn debts preferred against de- 
 ceased holder of lay-fee.] — If any one holding of us a 
 lay-fee dies, and the Sheriff or our Bailiff shall show our 
 
84 Constitutional History of New York. 
 
 letters-patent of summons concerning the debt which 
 the defunct owed to us, it shall be lawful for the Sherifif 
 or our Bailiff to attach and register the chattels of the 
 defunct found on that lay-fee, to the amount of that 
 debt, by the view of lawful men, so that nothing shall 
 be removed from thence until our debt be paid to us; 
 and the rest shall be left to the executors to fulfil the 
 will of the defunct; and if nothing be owing to us by 
 him, all the chattels shall fall to the defunct, saving to 
 his wife and children their reasonable shares. 
 
 (XXVII. i6) [Distribution of intestate freeman's 
 estate.] — If any free-man shall die intestate, his chat- 
 tels shall be distributed by the hands of his nearest rela- 
 tions and friends, by the view of the Church, saving to 
 every one the debts which the defunct owed. 
 
 (XXVIII. i8) [Taking personal property by certain 
 officers regulated.] — No Constable nor other Bailiff 
 of ours shall take the corn or other goods of any one, 
 without instantly paying money for them, unless he can 
 obtain respite from the free will of the seller. 
 
 (XXIX. 19) [Castle-guard regulated.]— No Con- 
 stable {Governor of a Castle) shall distrain any Knight 
 to give money for castle-guard, if he be willing to per- 
 form it in his own person, or by another able man, if 
 he cannot perform it himself, for a reasonable cause; 
 and if we have carried or sent him into the army, he 
 shall be excused from castle-guard, according to the 
 time that he shall be in the army by our command. 
 
 (XXX.20) [Freeman's carts or horses not to be 
 taken without his consent.] — No Sheriff nor Bailiff of 
 ours, nor any other person shall take the horses or carts 
 of any free-man, for the purpose of carriage, without 
 the consent of the said free-man. 
 
 (XXXI.21) [Wood not to be taken without own- 
 er's consent.] — Neither we, nor our Bailiff's, will take 
 
Magna Charta. 85 
 
 another man's wood, for our castles or other uses, 
 unless by the consent of him to whom the wood be-' 
 longs. 
 
 (XXXII.22) [Convicts' lands.]— We will not re- 
 tain the lands of those who have been convicted of felony, 
 excepting for one year and one day, and then they shall 
 be given up to the lord of the fee. 
 
 (XXXIII.23) [Dams to be removed from naviga- 
 ble streams.] — All kydells (wears) for the future shall 
 be quite removed out of the Thames, and the Medway, 
 and through all England, excepting upon the sea-coast. 
 
 (XXXIV.24) [Praecipe against freemen regulat- 
 ed.] — The writ which is called Praecipe, for the future 
 shall not be granted to any one of any tenement, by 
 which a free-man may lose his court. 
 
 (XXXV.12) [Weights and measures to be uni- 
 form.] — There shall be one measure of wine through- 
 out all our kingdom, and one measure of ale, and one 
 measure of corn; namely, the quarter of London; and 
 one breadth of dyed cloth, and of russets, and of halber- 
 jects ; namely, two ells within the lists. Also it shall be 
 the same with weights as with measures. 
 
 (XXXVI.26) [Inquisition of life or limb to be 
 free.] — Nothing shall be given or taken for the future 
 for the Writ of Inquisition of life or limb; but it shall 
 be given without charge, and not denied. 
 
 (XXXVII. 27) [Custody of certain heirs regulat- 
 ed.] — If any hold of us by Fee-Farm, or Socage, or 
 Burgage, and hold land of another by Military Service, 
 we will not have the custody of the heir, nor of his lands, 
 which are of the fee of another, on account of that Fee- 
 Farm, or Socage, or Burgage; nor will we have the 
 custody of the Fee-Farm, Socage, or Burgage, unless 
 the Fee-Farm owe Military Service. We will not have 
 the custody of the heir, nor of the lands of any one, 
 
86 Constitutional History of New York. 
 
 which he holds of another by Military Service, on ac- 
 count of any Petty-Sergeantry which he holds of us, by 
 the service of giving us daggers, or arrows, or the like. 
 
 (XXXVIII.28) [Defendant's rights.]— No Bailiff, 
 for the future, shall put any man to his law, upon his 
 own simple affirmation, without credible witnesses pro- 
 duced for that purpose. 
 
 (XXXIX. 29) [Freemen's rights protected.] — No 
 freeman shall be seized, or imprisoned, or dispossessed, 
 or outlawed, or in any way destroyed; nor will we con- 
 demn him, nor will we commit him to prison, excepting 
 by the legal judgment of his peers, or by the laws of 
 the land. 
 
 (XL.30) [Right and justice freely and promptly 
 given.] — To none will we sell, to none will we deny, 
 to none will we delay, right or justice. 
 
 (XLI.31) [Foreign merchants protected.] — All 
 Merchants shall have safety and security in coming into 
 England, and going out of England, and in staying and 
 in travelling through England, as well by land as by 
 water, to buy and sell, without any unjust exactions, 
 according to ancient and right customs, excepting in the 
 time of war, and if they be of a country at war against 
 us; and if such are found in our land at the beginning 
 of a war, they shall be apprehended without injury of 
 their bodies and goods, until it be known to us, or to 
 our Chief Justiciary, how the Merchants of our country 
 are treated who are found in the country at war against 
 us; a/id if ours be in safety there, the others shall be in 
 safety in our land. 
 
 (XLII.33) [Free travel permitted.]— It shall be 
 lawful to any person, for the future, to go out of our 
 kingdom, and to return, safely and securely, by land or 
 by water, saving his allegiance to us, unless it be in time 
 of war, for some short space, for the common good of 
 
Magna Charta. 87 
 
 the kingdom; excepting prisoners and outlaws, accord- 
 ing to the laws of the land, and of the people of the 
 nation at war against us, and Merchants, who shall be 
 treated as it is said above. 
 
 (XLIII.36) [Duty of heirs of escheated lands.] — 
 If any hold of any escheat, as of the Honour of Wal- 
 lingford, Nottingham, Boulogne, Lancaster, or of other 
 escheats which are in our land, and are Baronies, and 
 shall die, his heirs shall not give any other relief, nor 
 do any other service to us, than he should have done to 
 the Baron, if that Barony had been in the hands of the 
 Baron ; and we will hold it in the same manner that the 
 Baron held it. 
 
 (XLIV.39) [Jurisdiction of forest courts limited.] 
 — Men who dwell without the forest, shall not come, 
 for the future, before our Justiciaries of the Forest on 
 a common summons; unless they be parties in a plea, 
 or sureties for some person or persons who are attached 
 for the Forest. 
 
 (XLV.42) [Officers to be competent.] — We will 
 not make Justiciaries, Constables, Sheriffs, or Bailiffs, 
 excepting of such as know the laws of the land, and are 
 well disposed to observe them. 
 
 (XLVI.43) [Custody of certain vacant abbies.] — 
 All Barons who have founded Abbies, which they hold 
 by charters from the Kings of England, or by ancient 
 tenure, shall have the custody of them when they become 
 vacant, as they ought to have. 
 
 (XLVII.47) [Certain forests and water-banks to 
 be abandoned.] — All Forests which have been made 
 in our time, shall be immediately disforested; and it 
 shall be done so with Water-banks which have been 
 taken or fenced in by us during our reign. 
 
 (XLVIII.39) [Inquiry concerning forests and 
 water-banks.] — All evil customs of Forests and War- 
 
88 Constitutional History of New York. 
 
 rens, and of Foresters and Warrenei's, Sheriffs and 
 their officers, Water-banks and their keepers, shall im- 
 mediately be inquired into by twelve Knights of the 
 same county, upon oath, who shall be elected by good 
 men of the same county; and within forty days after 
 the inquisition is made, they shall be altogether de- 
 stroyed by them, never to be restored; provided that 
 this be notified to us before it be done, or to our Jus- 
 ticiary, if we be not in England. 
 
 (XLIX.38) [Hostages and charters to be re- 
 stored.] — We will immediately restore all hostages 
 and charters, which have been delivered to us by the 
 English, in security of the peace and of their faithful 
 service. 
 
 (L.40) [Certain persons to be removed from their 
 bailiwicks.] — We will remove from their bailiwicks 
 the relations of Gerard de Athyes, so that, for the future, 
 they shall have no bailiwick in England; Engelard de 
 Cygony, Andrew, Peter, and Gyone de Chancell, Gyone 
 de Cygony, Geoffrey de Martin, and his brothers, Philip 
 Mark, and his brothers, and Geoffrey, his nephew, and 
 all their followers. 
 
 (LI.41) [Certain knights and others to be re- 
 moved out of the kingdom.] — And immediately after 
 the conclusion of the peace, we will remove out of the 
 kingdom all foreign knights, crosshbowmen, and stipen- 
 diary soldiers, who have come with horses and arms to 
 the molestation of the kingdom. 
 
 (LII.2S) [Restoration of certain estates.] — If any 
 have been disseised or dispossessed by us, without a 
 legal verdict of their peers, of their lands, castles, liber- 
 ties, or rights, we will immediately restore these things 
 to them; and if any dispute shall arise on this head, 
 then it shall be determined by the verdict of the twenty- 
 >five Barons, of whom mention is made below, for the 
 
Magna Charta. 89 
 
 security of the peace. Concerning all those things of 
 which any one hath been disseised or dispossessed, with- 
 out the legal verdict of his peers by King Henry our 
 father, or King Richard our brother, which we have in 
 our hand, or others hold with our warrants, we shall 
 have respite, until the common term of the Croisaders, 
 excepting those concerning which a plea had been moved, 
 or an inquisition taken, by our precept, before taking 
 the Cross; but as soon as we shall return from our ex- 
 pedition, or if, by chance, we should not go upon our 
 expedition, we will immediately do complete justice 
 therein. 
 
 (LIII.) [Provisions concerning certain forests, 
 wardships, and abbies.] — The same respite will we 
 have, and the same justice shall be done, concerning the 
 disforestation of the forests, or the forests which remain 
 to be disforested, which Henry our father, or Richard 
 our brother, have afforested; and the same concerning 
 the wardship of lands which are in another's fee, but 
 the wardship of which we have hitherto had, occasioned 
 by any of our fees held by Military Service; and for 
 Abbies founded in any other fee than our own, in which 
 the Lord of the fee hath claimed a right; and when we 
 shall have returned, or if we shall stay from our ex- 
 pedition, we shall immediately do complete justice in all 
 these pleas. 
 
 (LIV.) [Woman's right of appeal limited.] — No 
 man shall be apprehended or imprisoned on the appeal of 
 a woman, for the death of any other man than her hus- 
 band. 
 
 (LV.37) [Unjust fines and amerciaments to be re- 
 mitted.] — All fines that have been made by us un- 
 justly, or contrary to the laws of the land; and all 
 amerciaments that have been imposed unjustly, or con- 
 trary to the laws of the land, shall be wholly remitted, 
 
go Constitutional History of New York. 
 
 or ordered by the verdict of the twenty-five Barons, of 
 whom mention is made below, for the security of the 
 peace, or by the verdict of the greater part of them, 
 together with the aforesaid Stephen, Archbishop of 
 Canterbury, if he can be present, and others whom 
 he may think fit to bring with him ; and if he cannot be 
 present, the business shall proceed, notwithstanding, 
 without him; but so, that if any one or more of the 
 aforesaid twenty-five Barons have a similar plea, let them 
 be removed from that particular trial, and others, elected 
 and sworn by the residue of the same twenty-five, be 
 substituted in their room, only for that trial. 
 
 (LVI.44) [Welshmen's rights to be restored.] — 
 If we have disseissed or dispossessed any Welshmen of 
 their lands, or liberties, or other things, without a legal 
 verdict of their peers, in England or in Wales, they 
 shall be immediately restored to them; and if any dis- 
 pute shall arise upon this head, then let it be determined 
 in the Marches by the verdict of their peers; for a 
 tenement of England, according to the law of England; 
 for a tenement of Wales, according to the law of Wales; 
 for a tenement of the Marches, according to the law of 
 the Marches. The Welsh shall do the same to us and 
 to our subjects. 
 
 (LVII.) [Restoration of Welsh property taken by 
 former Kings.] — Also concerning those things of 
 which any Welsh-man hath been disseised or dispossessed 
 without the legal verdict of his peers, by King Henry 
 our father, or King Richard our brother, which we have 
 in our hand, or others hold with our -warrant, we shall 
 have respite, until the common term of the Croisaders, 
 excepting for those concerning which a plea had been 
 moved, or an inquisition made, by our precept, before 
 our taking the Cross. But as soon as we shall return 
 from our expedition, or if, by chance, we should not 
 
Magna Charta. 91 
 
 go upon our expedition, we shall immediately do com- 
 plete justice therein, according to the laws of Wales, 
 and the parts aforesaid. 
 
 (LVIII.45) [Certain hostages to be released.] — 
 We will immediately deliver up the son of Llewelin, 
 and all the hostages of Wales, and release them from 
 their engagements which were made with us, for the 
 security of the peace. 
 
 (LIX.46) [Scotch King's rights to be restored.]— 
 We shall do to Alexander, King of Scotland, concern- 
 ing the restoration of his sisters and hostages, and his 
 liberties and rights, according to the form in which we 
 act to otir 'Other Barons of England, unless it ought to 
 be otherwise by the charters which we have from his 
 father William, the late King of Scotland ; and this shall 
 be by the verdict of his peers, in our court. 
 
 (LX.48) [Customs and liberties, continued.] — 
 Also all these customs and liberties aforesaid, which we 
 have granted to be held in our kingdom, for so much 
 of it as belongs to us, all our subjects, as well clergy as 
 laity, shall observe towards their tenants as far as con- 
 cerns them. 
 
 (LXI.49) [Twenty-five barons appointed to en- 
 force charter,] — But since we have granted all these 
 things aforesaid, for God, and for the amendment of 
 our kingdom, and for the better extinguishing the dis- 
 cord which has arisen between us and our Barons, we, 
 being desirous that these things should possess entire 
 and unshaken stability for ever, give and grant to them 
 the security underwritten; namely, that the Barons may 
 elect twenty-five Barons of the kingdom, whom they 
 please, who shall, with their whole power, observe, keep, 
 and cause to be observed, the peace and liberties which 
 we have granted to them, and have confirmed by this 
 our present charter, in this manner : that is to say, if we. 
 
92 Constitutional History of New York. 
 
 or our Justiciary, or our bailiffs, or any of our officers, 
 shall have injured any one in anything, or shall have 
 violated any article of the peace or security, and the 
 injury shall have been shown to four of the aforesaid 
 twenty-five Barons, the said four Barons shall come to 
 us, or to our Justiciary if we be out of the kingdom, 
 and making known to us the excess committed, petition 
 that we cause that excess to be redressed without delay. 
 And if we shall not have redressed the excess, or, if 
 we have been out of the kingdom, our Justiciary shall 
 not have redressed it within the term of forty days, 
 computing from the time when it shall have been made 
 known to us, or to our Justiciary if we have been out 
 of the kingdom, the aforesaid four Barons shall lay that 
 cause before the residue of the twenty-five Barons; and 
 they, the twenty-five Barons, with the community of the 
 whole land, shall distress and harass us by all the ways 
 in which they are able; that is to say, by the taking 
 of our castles, lands, and possessions, and by any other 
 means in their power, until the excess shall have been 
 redressed, according to their verdict; saving harmless 
 our person, and the persons of our Queen and children; 
 and when it hath been redressed, they shall behave to 
 us as they have done before. And whoever of our 
 land pleaseth may swear that he will obey the com- 
 mands of the aforesaid twenty-five Barons, in accomplish- 
 ing all the things aforesaid, and that with them he will 
 harass us to the utmost of his power; and we publicly 
 and freely give leave to every one to swear who is willing 
 to swear; and we will never forbid any to swear. But 
 all those of our land, who, of themselves, and of their 
 own accord, are unwilling to swear to the twenty-five 
 Barons, to distress and harass us together with them, 
 we will compel them by our command, to swear as afore- 
 said. And if any one of the twenty-five Barons shall 
 
Magna Charta. 93 
 
 die, or remove out of the land, or in any other way 
 shall be prevented from executing the things above said, 
 they who remain of the twenty-five Barons shall elect 
 another in his place, according to their own pleasure, who 
 shall be sworn in the same manner as the rest. In all 
 those things which are appointed to be done by these 
 twenty-five Barons, if it happen that all the twenty-five 
 have been present, and have differed in their opinions 
 about any thing, or if some of them who had been 
 summoned, would not, or could not be present, that 
 which the greater part of those who were present shall 
 have provided and decreed shall be held as firm and as 
 valid as if all the twenty-five had agreed in it; and 
 the aforesaid twenty-five shall swear that they will faith- 
 fully observe, and, with all their power, cause to be 
 observed, all the things mentioned above. And we will 
 obtain nothing from any one, by ourselves, nor by an- 
 other, by which any of these concessions and liberties 
 may be revoked or diminished. And if any such thing 
 shall have been obtained, let it be void and null; and 
 we will never use it, neither by ourselves nor by another. 
 (LXII.) [General amnesty.] — And we have fully 
 remitted and pardoned to all men, all the ill-will, rancour, 
 and resentments which have arisen between us and our 
 subjects, both clergy and laity, from the commencement 
 of the discord. Moreover, we have fully remitted to 
 all the clergy and laity, and as far as belongs to us, 
 have fully pardoned all transgressions committed by 
 occasion of the said discord, from Easter, in the six- 
 teenth year of our reign, until the conclusion of the 
 peace. (49) And, moreover, we have caused to be made 
 to them ' testimonial letters-patent of the Lord Stephen, 
 Archbishop of Canterbury, the Lord Henry, Archbishop 
 of Dublin, and of the aforesaid Bishops, and of Master 
 
94 Constitutional History of New York. 
 
 Pandulph concerning this security, and the aforesaid 
 concessions. 
 
 (LXIII.) [Charter rights guaranteed forever.] — 
 Wherefore, our will is, and we firmly command that the 
 Church of England be free, and that the men in our 
 kingdom have and hold the aforesaid liberties, rights, 
 and concessions, well and in peace, freely and quietly, 
 fully and entirely, to them and their heirs, of us and 
 our heirs, in all things and places, for ever as is afore- 
 said. It is also sworn, both on our part, and on that 
 of the Barons, that all the aforesaid shall be observed 
 in good faith, and without any evil intention. Witnessed 
 by the above, and many others. Given by our hand in 
 the Meadow which is called Runningmead, between 
 Windsor and Staines, this 15th day of June, in the 17th 
 year of our reign. 
 
 (seal.) 
 
Charter of Liberties and Privileges, 1683. 95 
 
 CHARTER OF LIBERTIES AND PRIVILEGES, 
 
 1683. 
 
 [Passed by the first New York legislature, October 30, 1683. A 
 sketch of this charter and of its successor, the charter of 1691, will 
 be found in the chapter on the Colonial Period. For convenience 
 of reference I have prefixed a title and number to each paragraph 
 of the charter. I have also added explanatory notes showing the 
 origin and subsequent continuance of various provisions.] 
 
 FFOR The better Establishing the Government of this 
 province of New Yorke and that Justice and Right may 
 be Equally done to all persons within the same 
 BEE It Enacted by the Govecnour Councell and Repre- 
 sentatives now in General Assembly mett and assembled 
 and by the authority of the same. 
 
 [The preamble states the general purpose of the charter, and is 
 quite similar, at least, in spirit, to the preamble to our Constitu- 
 tions. A sketch of the enacting clause, showing its evolution from 
 early parliamentary forms, will be found in the fourth volume, in a 
 note to article 3, § 14, of the Constitution, which prescribes the form 
 of the enacting clause.] 
 
 I. [Supreme legislative authority.] — THAT The 
 Supreme Legislative Authority under his Majesty and 
 Royall Highnesse James Duke of Yorke Albany &c Lord 
 proprietor of the said province shall forever be and reside 
 in a Governour, Councell, and the people mett in Generall 
 Assembly. ^ 
 
 [The principle of this paragraph, with modifications, appears in 
 the Constitution of 1777, § 2; 1821, art. i, § i; 1846, art. 3, § i; 
 1894, art. 3, § I. The phrase "supreme legislative authority" appears 
 in the first Constitution as "supreme legislative power," and in sub- 
 sequent Constitutions as "legislative power." The governor was 
 also made a constituent part of the legislature. In the chapter on 
 the first Constitution I have njoted the fact that the convention 
 which framed that instrument once adopted a similar provision, but 
 afterwards the plan was abandoned.] 
 
96 Constitutional History of New York. 
 
 2. [Governor and council.] — THAT The Exercise 
 of the Cheife Magistracy and Administracon of the 
 Government over the said province shall bee in the said 
 Governour assisted by a Councell with whose advice and 
 Consent or with at least four of them he is to rule and 
 Governe the same according to the Lawes thereof. 
 
 [The executive power of the colony was thus vested in a governor 
 and council. This power had already existed many years and was 
 continued through the colonial period. A similar provision was 
 proposed in the convention which framed the first Constitution, 
 and so far as the appointment of officers was concerned was in fact 
 established by that instrument through the provision for a council 
 of appointment, composed of the governor and four senators, which 
 possessed the absolute power of appointment and removal of nearly 
 all officers, both civil and military.] 
 
 3. [Council to act in governor's absence.] — THAT 
 In Case the Governour shall dye or be absent out of 
 the province and that there be noe person within the 
 said province Comissionated by his Royall Highnesse 
 his heires or Successours to be Governour or Comander 
 in Cheife there That then the Councell for the time 
 being or Soe many of them as are in the Said province 
 doe take upon them the Administracon of the Governour 
 and the Execucon of the Lawes thereof and powers and 
 authorityes belonging to the Governour and Councell 
 the first in nominacon in which Councell is to preside 
 untill the said Governour shall returne and arrive in 
 the said province againe, or the pleasure of his Royall 
 Highnesse his heires or Successours Shall be further 
 knowne. 
 
 [This paragraph, which was intended to provide for continuing 
 the government whenever the office of governor should become 
 actually or constructively vacant, appears in substance in several 
 commissions issued to governors during the colonial period. This 
 subject has been treated at some length in the fourth volume, in 
 notes to §§ 6 and 7 of article 4 of the Constitution of 1894.] 
 
Charter of Liberties and Privileges, 1683. 97 
 
 4. [General assembly, when to meet.] — ^THAT 
 According to the usage Custome and practice of the 
 Realme of England a sessions of a Generall Assembly 
 be held in this province once in three yeares at least. 
 
 [An assembly which could not meet would be of little value as a 
 part of the governmental machinery, or as a means of protection 
 against royal encroachments ; hence it was important to provide for 
 frequent meetings of the legislature. Afterwards the people of the 
 colony insisted upon annual meetings of the legislature, and annual 
 appropriations. This subject is further considered in the chapter 
 on the Colonial Period, and also in the article in the third volume 
 on apportionment during the Colonial Period. The present Con- 
 stitution requires annual meetings of the legislature.] 
 
 5. [Right of suffrage; qualifications of voters.] — 
 
 THAT Every ffreeholder within this province and 
 ffreeman in any Corporacon Shall have his free Choise 
 and Vote in the Electing of the Representatives without 
 any manner of constraint or Imposicon. And that in 
 all Eleccons the Majority of Voices shall carry itt and 
 by freeholders is understood every one who is Soe under- 
 stood according to the Lawes of England. 
 
 [This provision was continued with some statutory modifications 
 during the Colonial Period, and was substantially incorporated in 
 the first Constitution (1777) §§ 7 and 10, and Const. 1821, art. 2, 
 § I. The property qualification, except as to colored voters, was 
 abrogated by the amendment of 1826. See Constitution of 1846, 
 art 2, § I, including amendments of 1864 and 1874, and the Con- 
 stitution of 1894, art 2, § I, for subsequent and existing provisions 
 on this subject.] 
 
 6. [Representatives, how apportioned.] — THAT 
 The persons to be Elected to sitt as representatives in 
 the Generall Assembly from time to time for the sev- 
 erall Cittyes townes Countyes Shires or Divisions of 
 this province and all places within the same shall be 
 according to the proporcon and number hereafter Ex- 
 pressed that is to say for the Citty and County of New 
 Yorke four, for the County of Sufifoike two, for Queens 
 County two, for Kings County two, for the County of 
 
 Vol. I. Const. Hist.— 7. 
 
98 Constitutional History of New York. 
 
 Richmond two for the County of' West Chester two, 
 for the County of Ulster two for the County of Albany 
 two and for Schenectade within the said County one for 
 Dukes County two, for the County of Cornwall two 
 and as many more as his Royall Highnesse shall think 
 fitt to Establish. 
 
 [This subject is considered elsewhere in this volume, and also in 
 detail in the article on colonial apportionment in the third volume. 
 Provisions relating to the same subject will be found in the Consti- 
 tution of 1777, § 4; 1821, art. i, § 7; 1846, art. 3, § 5; and 1894, 
 art. 3, i S-] 
 
 7. [General assembly, how constituted.] — ^THAT 
 All persons Chosen and Assembled in manner aforesaid 
 or the Major part of them shall be deemed and accounted 
 the Representatives of this province which said Repre- 
 sentatives together with the Governour and his Councell 
 Shall forever be the Supreame and only Legislative 
 power under his Royall Highnesse of the said province. 
 
 [See note to par. i.] 
 
 8. [Sessions of General Assembly.] — THAT The 
 said Representatives may appoint their owne Times of 
 meeting dureing their sessions and may adjourne their 
 house from time to time to such time as to them shall 
 seeme meet and convenient. 
 
 [This made the assembly independent of the governor and council 
 in the transaction of its ordinary business, including the power of 
 adjournment. The first Constitution contained a provision, which 
 has been continued in subsequent Constitutions, prohibiting the ad- 
 journment by either House for more than two days without the 
 consent of the other; but the colonial assembly was not, in this 
 respect, subject to the control of the governor and council. They 
 formed the executive branch of the government and were a con- 
 tinuing authority, not chosen by the people, and it would have been 
 a serious limitation on the power of the people if their represent- 
 atives had been made subject to executive control.] 
 
 9. [Assembly may determine qualifications and 
 election of members.] — THAT THE said Represent- 
 
Charter of Liberties and Privileges, 1683. 99 
 
 atives are the sole Judges of the Qualificacons of their 
 
 owne members, and likewise of all undue Eleccons and 
 
 may from time to time purge their house as they shall 
 
 see occasion dureing the said sessions. 
 
 [This was the assertion of an ancient parliamentary privilege and 
 it has been continued in all our Constitutions. Const. 1777, § 9; 
 1821, art. I, § 3; 1846, art. 3, § 10; 1894, art. 3, § 10.] 
 
 10. [Immunities of members.] — THAT Noe mem- 
 ber of the general Assembly or their servants dureing 
 the time of their Sessions and whilest they shall be goe- 
 ing to and returning from the said Assembly shall be 
 arrested sued imprisoned or any wayes molested or 
 troubled nor be compelled to make answere to any suite, 
 Bill, plaint, Declaracon or otherwise, (Cases of High 
 Treason and felony only excepted) provided the number 
 of the said servants shall not Exceed three. 
 
 [This was another ancient privilege which was as necessary for 
 members of the assembly as for members of the House of Com- 
 mons. The present provision on this subject is found in the legis- 
 lative law, § 2, which prohibits the arrest of members of the legisla- 
 ture on civil process, except in certain extraordinary cases. See, as 
 to Congress, Articles of Confederation, art. 5.] 
 
 11. [Laws must be approved by governor and 
 council.] — THAT All bills agreed upon by the said 
 Representatives or the Major part of them shall be pre- 
 sented unto the Governour and his Councell for their 
 Approbacon and Consent All and Every which Said 
 Bills soe approved of Consented to by the Governour 
 and his Councell shall be Esteemed and accounted the 
 Lawes of the province, Which said Lawes shall con- 
 tinue and remaine of force untill they shall be repealed 
 by the authority aforesaid that is to say the Governour 
 Councell and Representatives in General Assembly by 
 arid with the Approbacon of his Royal Highnesse or 
 Expire by their owne Limittacons. 
 
 [This specifically made the governor and council- component parts 
 of the legislature. See note to par. i.] 
 
lOO 
 
 Constitutional History of New York. 
 
 12. [Elections for vacancies in assembly.]— 
 
 THAT In all cases of death or removall of any of the 
 said Representatives The Governour shall issue out 
 Summons by Writt to the Respective Townes Cittyes 
 Shires Countryes or Divisions for which he or they soe 
 removed or deceased were Chosen willing and require- 
 ing the ffreholders of the Same to Elect others in their 
 place and stead. 
 
 [The present provision relating to elections to fill vacancies in 
 the office of a senator or member of assembly will be found in the 
 election law, § 4. The governor's proclamation in such a case is 
 a substitute for the writ of election required by the foregoing para- 
 graph.] 
 
 13. [Freemen's rights.]— THAT Noe freeman 
 shall be taken and imprisoned or be disseized of his 
 ffrehold or Libertye or ffree Customes or be outlawed 
 or Exiled or any other wayes destroyed nor shall be 
 passed upon adjudged or condemned But by the Law- 
 full Judgment of his peers and by the Law of this prov- 
 ince. Justice nor Right shall be neither sold denyed or 
 deferred to any man within this province. 
 
 [The first part is from the famous 39th article of Magna Charta. 
 Gilbert Livingston presented it in a more modern form to the con- 
 vention which framed the first Constitution, and it appears as § 13 
 of that instrument and has been continued in the Constitution of 
 1821, art. 7, § I ; 1846, art. i, § i ; and in Const. 1894, art. i, § I. 
 The last sentence of the paragraph is from article 40 of Magna 
 Charta.] 
 
 14. [When aids and other burdens not to be lev- 
 ied.] — THAT Noe aid, Tax, Tallage, Assessment, 
 Custome, Loane, Benevolence or Imposicon whatsoever 
 shall be layed assessed imposed or levyed on any of his 
 Majestyes Subjects within this province or their Estates 
 upon any manner of colour or pretence but by the act 
 and Consent of the Governour Councell and Represent- 
 
Charter of Liberties and Privileges, 1683. 101 
 
 atives of the people in Generall Assembly mett and 
 Assembled. 
 
 [This provision is borrowed in substance from the English Peti- 
 tion of Rights of 1628, a sketch of which will be found in the article 
 on the Bill of Rights in the chapter on the Convention of 1821.] 
 
 15. [Due process of law.] — THAT Noe man of 
 what Estate or Condicon soever shall be putt out of 
 his Lands or Tenements, nor taken, nor imprisoned, nor 
 disherited, nor banished nor any wayes distroyed with- 
 out being brought to Answere by due Course of Law. 
 
 [This is from the statute 28 Edward III. (13S4). The provision 
 also appears in the English Petition of Rights, 1628, and in other 
 English declarations relating to the rights of freemen. This subject 
 is considered in the article on Due Process of Law in the fourth 
 volume in a note to article I, § 6.] 
 
 16. [Amerciaments to be reasonable.] — THAT A 
 ffreeman Shall not be amerced for a small fault, but 
 after the manner of his fault and for a great fault 
 after the Greatnesse thereof Saveing to him his freehold. 
 And a husbandman saveing to him his Wainage and a 
 merchant likewise saveing to him his merchandize And 
 none of the said Amerciaments shall be assessed but 
 by the oath of twelve honest and Lawfull men of the 
 Vicinage provided the faults and misdemeanours be not 
 in Contempt of Courts of Judicature. 
 
 [This paragraph is based on article 20 of Magna Charta. The 
 constitutional provision, article i, § S, prohibiting excessive fines, 
 expresses the principle of this paragraph, to which should probably 
 be added statutes providing for exemptions from execution, which 
 embody the same idea, but in a different form.] 
 
 17. [Trial by jury.] — ALL Tryalls shall be by the 
 verdict of twelve men, and as neer as may be peers or 
 Equalls And of the neighbourhood and in the County 
 Shire or Division where the fact Shall arise or grow 
 Whether the Same be by Indictment Infermacon Dec- 
 
I02 Constitutional History of New York. 
 
 laracon or otherwise against the person Offender or De- 
 fendant. 
 
 [The right of trial by jury, intended to be secured by this provi- 
 sion, was reasserted in the revived Charter of Liberties of 1691, and 
 was one of the fundamental rights enjoyed during the colonial 
 period. It has been preserved in all our Constitutions, — 1777, § 41 ; 
 1821, art. 7, § 2; 1846, art. I, § 2; 1894, art. I, § 2. Additional 
 notes on this subject will be found in the article on Trial by Jury 
 in the fourth volume.] 
 
 18. [Indictment and trial in criminal cases.] — 
 
 THAT In all Cases Capitall or Criminall there shall 
 
 be a grand Inquest who shall first present the offence 
 
 and then twelve men of the neighbourhood to try the 
 
 Offender who after his plea to the Indictment shall be 
 
 allowed his reasonable Challenges. 
 
 [This subject is considered in a note to article I, § 6, in the fourth 
 volume. The provision requiring an indictment in important crim- 
 inal cases was not included in the first Constitution, and the subject 
 was therefore left to legislative discretion. The New York Bill of 
 Rights of 1787, § 3, required an indictment in these cases, and the 
 provision was incorporated in the Constitution of 1821, art. 7, § 7. 
 See also. Const. 1846, art. i, § 6; 1894, art. I, § 6.] 
 
 19, [Bail.] — THAT In all Cases whatsoever Bayle 
 by sufficient Suretyes Shall be allowed and taken unlesse 
 for treason or felony plainly and specially Expressed 
 and menconed in the Warrant of Committment pro- 
 vided Alwayes that nothing herein contained shall 
 Extend to discharge out of prison upon bayle any person 
 taken in Execucon for debts or otherwise legally sen- 
 tenced by the Judgment of any of the Courts of Record 
 within the province. 
 
 [This paragraph seems to have been based upon the statute 23 
 Henry VI., chap. 9 (144s), which imposed on sheriffs the duty of 
 taking bail. The general policy of this paragraph has been con- 
 tinued in various state statutes which need not here be cited, except 
 the Code of Criminal Procedure, which contains detailed provisions 
 on this subject. Another aspect of the subject appears in the con- 
 stitutional provision, article i, § 5, which prohibits excessive bail.] 
 
Charter of Liberties and Privileges, 1683. 103 
 
 20. [Martial law regulated.] — THAT Noe Com- 
 issions for proceeding by Marshall Law against any 
 of his Majestyes Subjects within this province shall 
 issue forth to any person or persons whatsoever Least 
 by Colour of them any of his Majestyes Subjects bee 
 destroyed or putt to death Except all such officers per- 
 sons and Soldiers in pay throughout the Government. 
 
 [This is evidently taken from a similar provision in the English 
 Petition of Rights of 1628. The colonists, like their English neigh- 
 bors, were evidently afraid of military power, and jealous of their 
 civil rights, which were supposed to be sufi&ciently guarded by 
 Magna Qiarta. In notes to the militia article in the fourth volume 
 I have cited decisions in which the courts assert the broad principle 
 that civil judicial tribunals may review the proceedings of the mili- 
 tary department, at least so far as relates to questions of jurisdic- 
 tion, and will protect the citizen against an unconstitutional exer- 
 cise of military authority.] 
 
 21. [Land to be deemed estate of inheritance.] — 
 THAT From hence forward Noe Lands Within this 
 province shall be Esteemed or accounted a Chattle or 
 personall Estate but an Estate of Inheritance according 
 to the Custome and practice of his Majestyes Realme 
 of England. 
 
 [This paragraph asserts a well settled rule relating to real prop- 
 erty, which is of great importance in a community free from the 
 limitations and burdens of the feudal system. Early state statutes 
 expressed the same rule, and abolished feudal tenures. These sub- 
 jects were included in the Constitution of 1846, and appear as §§ 11 
 and 12 of article i in the Constitution of 1894. The latter section 
 declares all lands to be allodial.] 
 
 22. [Execution against property regulated.] — 
 
 THAT Noe Court or Courts within this province have 
 or at any time hereafter Shall have any Jurisdiccon 
 power or authority to grant out any Execucon or other 
 writt whereby any mans Land may be sold or any other 
 way disposed off without the owners Consent provided 
 Alwayes That the issues or meane proffitts of any mans 
 Lands shall or may be Extended by Execucon or other- 
 
I04 Constitutional History of New York. 
 
 wise to satisfye just debts Any thing to the Contrary 
 hereof in any wise Notwithstanding. 
 
 [This seems to be a corollary to the last paragraph. It prohibited 
 a sale of the debtor's land without his consent, and limited a cred- 
 itor's remedy to the issues and mean profits of the land. This land 
 policy was too rigid for a commercial people, and has since given 
 place to statutory provisions by which a debtor's land may be sold 
 for the payment of his debts.] 
 
 23. [Married woman's deed.] — THAT Noe Estate 
 of a feme Covert shall be sold or conveyed But by 
 Deed acknowledged by her in Some Court of Record the 
 Woman being secretly Examined if She doth it freely 
 without threats or Compulsion of her husband. 
 
 [This rule continued in force until abrogated by statute in 1879.] 
 
 24. [Conveyance by will.]— THAT All Wills in 
 writeing attested by two Credible Witnesses shall be 
 of the same force to convey Lands as other Conveyances 
 being registered in the Secretaryes Office within forty 
 dayes after the testators death. 
 
 [This rule as to witnesses is still in force.] 
 
 25. [Dower.J — THAT A Widow after the death 
 of her husband shall have her Dower And shall and 
 may tarry in the Cheife house of her husband forty 
 dayes after the death of her husband within which forty 
 dayes her Dower shall be assigned her And for her 
 Dower shall be assigned unto her the third part of all 
 the Lands of husband dureing Coverture, Except shee 
 were Endowed of Lesse before Marriage. 
 
 [This is substantially the present law.] 
 
 26. [Alienation of lands to be free.] — THAT All 
 Lands and Heritages within this province and Depend- 
 encyes shall be free from all fines and Lycences upon 
 Alienacons, and from all Harriotts Ward Shipps Liv- 
 eryes primer Seizins yeare day and Wast Escheats and 
 forfeitures upon the death of parents and Ancestors 
 
Charter of Liberties and Privileges, i68j. 105 
 
 naturall unaturall casuall or Judiciall, and that forever; 
 Cases of High treason only Excepted. 
 
 [Fines and other restraints on alienation were prohibited by 
 statute in the early history of the state, and the prohibition was 
 incorporated in the Constitution of 1846.] 
 
 27. [Religious toleration.] — THAT Noe person or 
 persons which prof esse ffaith in God by Jesus Christ 
 Shall at any time be any wayes molested punished dis- 
 quieted or called in Question for any Difference in 
 opinion or Matter of Religious Concernment, who doe 
 not actually disturb the Civill peace of the province, 
 But that all and Every such person or persons may 
 from time to time and at all times freely have and 
 fully enjoy his or their Judgments or Consciencyes in 
 matters of Religion throughout all the province, they 
 behaveing themselves peaceably and quietly and not 
 useing this Liberty to Lycentiousnesse nor to the Civill 
 Injury or outward disturbance of others provided Al- 
 wayes that this liberty or any thing contained therein 
 to the Contrary shall never be Construed or improved 
 to make void the Settlement of any publique Minister 
 on Long Island Whether Such Settlement be by two 
 thirds of the voices in any Towne thereon which shall 
 alwayes include the Minor part Or by Subscripcons of 
 perticuler Inhabitants in Said Townes provided they 
 are the two thirds thereon Butt that all such agreements 
 Covenants and Subscripcons that are there already made 
 and had Or that hereafter shall bee in this Manner Con- 
 sented to agreed and Subscribed shall at all time and 
 times hereafter be firme and Stable And in Confirmacon 
 hereof It is Enacted by the Governour Councell and 
 Representatives; That all Such Sumes of money soe 
 agreed and Consented to or Subscribed as aforesaid for 
 maintenance of said Publick Ministers by the two thirds 
 of any Towne on Long Island Shall alwayes include 
 
io6 Constitutional History of New York. 
 
 the Minor part who shall be regulated thereby And 
 also Such Subscripcons and agreements as are before 
 menconed are and Shall be alwayes ratified performed 
 and paid, And if any Towne on said Island in their 
 publick Capacity of agreement with any Such minister 
 or any perticuler persons by their private Subscripcons 
 as aforesaid Shall make default deny or withdraw from 
 Such payment Soe Covenanted to agreed upon and 
 Subscribed That in Such Case upon Complaint of any 
 Collector appointed and Chosen by two thirds of Such 
 Towne upon Long Island unto any Justice of that 
 County Upon his hearing the Same he is hereby author- 
 ized impowered and required to issue out his warrant 
 unto the Constable or his Deputy or any other person 
 appointed for the Collection of said Rates or agree- 
 ment to Levy upon the goods and Chatties of the Said 
 Delinquent or Defaulter all such Sumes of money Soe 
 covenanted and agreed to be paid by distresse with 
 Costs and Charges without any further Suite in Law 
 Any Lawe Custome or usage to the Contrary in any 
 wise Notwithstanding. 
 
 PROVIDED Alwayes the said sume or sumes be 
 under forty shillings otherwise to be recovered as the 
 Law directs. 
 
 AND WHEREAS All the Respective Christian 
 Churches now in practice within the City of New Yorke 
 and the other places of this province doe appeare to be 
 priviledged Churches and have beene Soe Established 
 and Confirmed by the former authority of this Gov- 
 ernment BEE it hereby Enacted by this Generall As- 
 sembly and by the authority thereof That all the Said 
 Respective Christian Churches be hereby Confirmed 
 therein And that they and Every of them Shall from 
 henceforth forever be held and reputed as priviledged 
 Churches and Enjoy all their former freedomes of their 
 
Charter of Liberties and Privileges, 1683. 107 
 
 Religion in Divine Worshipp and Church Discipline 
 And that all former Contracts made and agreed upon 
 for the maintenances of the severall ministers of the 
 Said Churches shall stand and continue in full force 
 and virtue And that all Contracts for the future to be 
 made Shall be of the same power And all persons that 
 are unwilling to performe their part of the said Con- 
 tract Shall be Constrained thereunto by a warrant from 
 any Justice of the peace provided it be under forty 
 Shillings Or otherwise as this Law directs provided 
 allsoe that all Christian Churches that Shall hereafter 
 come and settle with in this province shall have the 
 Same priviledges. 
 
 [The first part of this paragraph was included in substance in 
 § 38 of the Constitution of 1777, which has since been continued 
 without change, except that a provision relating to the competency 
 of witnesses was added in 1846. Notes on this provision will be 
 found in the fourth volume.] 
 
io8 Constitutional History of New York. 
 
 THE DECLARATION OF INDEPENDENCE, 1776. 
 
 [The Declaration was adopted by the Continental Congress on the 
 4th of July, 1776, and on the pth of the same month was ratified by 
 the New York Provincial Congress, which afterwards framed the 
 first state Constitution. The entire Declaration was made a part of 
 the preamble to that instrument, which was adopted April 20, 1777. 
 On the i8th of January, 1777, the Continental Congress directed an 
 authenticated copy of the Declaration to be transmitted to each state 
 for record.] 
 
 When, in the course of human events, it becomes 
 necessary for one people to dissolve the political bands 
 which have connected them with another, and to assume, 
 among the powers of the earth, the separate and equal 
 station to which the laws of nature and of nature's 
 God entitle them, a decent respect to the opinions of 
 mankind requires that they should declare the causes 
 which impel them to the separation. 
 
 We hold these truths to be self-evident, — that all men 
 are created equal; that they are endowed, by their 
 Creator, with certain unalienable rights; that among 
 these are life, liberty, and the pursuit of happiness. That 
 to secure these rights, governments are instituted among 
 men, deriving their just powers from the consent of 
 the governed; that whenever any form of government 
 becomes destructive of these ends, it is the right of the 
 people to alter or to abolish it, and to institute new 
 government, laying its foundation on such principles, 
 and organizing its powers in such form as to them shall 
 seem most likely to effect their safety and happiness. 
 Prudence, indeed, will dictate, that governments long 
 established should not be changed for light and tran- 
 sient causes ; and accordingly all experience hath shown, 
 that mankind are more disposed to suffer, while evils 
 are sufferable, than to right themselves by abolishing 
 the forms to which they are accustomed. But when a 
 
The Declaration of Independence, 1776. 109 
 
 long train of abuses and usuq)ations, pursuing invari- 
 ably the same object, evinces a design to reduce them 
 under absolute despotism, it is their right, it is their 
 duty, to throw off such government, and to provide 
 new guards for their future security. Such has been 
 the patient sufferance of these Colonies, and such is 
 now the necessity which constrains them to alter their 
 former systems of government. The history of the 
 present King of Great Britain is a history of repeated 
 injuries and usurpations, all having in direct object the 
 establishment of an absolute tyranny over these States. 
 To prove this, let facts be submitted to a candid world. 
 
 He has refused his assent to laws, the most whole- 
 some and necessary for the public good. 
 
 He has forbidden his governors to pass laws of imme- 
 diate and pressing importance, unless suspended in their 
 operation till his assent should be obtained; and when 
 so suspended, he has utterly neglected to attend to them. 
 
 He has refused to pass other laws for the accom- 
 modation of large districts of people, unless those people 
 would relinquish the right of representation in the legis- 
 lature, — a right inestimable to them, and formidable to 
 tyrants only. 
 
 =He has called together legislative bodies at places 
 unusual, uncomfortable, and distant from the depository 
 of their public records, for the sole purpose of fatiguing 
 them into compliance with his measures. 
 
 He has dissolved representative houses repeatedly, 
 for opposing with manly firmness his invasions on the 
 rights of the people. 
 
 He has refused for a long time, after such dissolu- 
 tions, to cause others to be elected, whereby the legis- 
 lative powers, incapable of annihilation, have returned 
 to the people at large for their exercise; the State re- 
 
no Constitutional History of New York. 
 
 maining, in the meantime, exposed to all the dangers 
 of invasion from without, and convulsions within. 
 
 vHe has endeavored to prevent the population of these 
 States; for that purpose obstructing the laws for 
 naturalization of foreigners; refusing to pass others 
 to encourage their migration hither, and raising the 
 conditions of new appropriations of lands. 
 
 He has obstructed the administration of justice by 
 refusing his assent to laws for establishing judiciary 
 powers. 
 
 He has made judges dependent on his will alone for 
 the tenure of their offices, and the amount and payment 
 of their salaries. 
 
 He has erected a multitude of new offices, and sent 
 hither swarms of officers to harass our people, and eat 
 out their substance. 
 
 He has kept among us, in times of peace, standing 
 armies, without the consent of our legislatures. 
 
 He has affected to render the military independent of, 
 and superior to, the civil power. 
 
 He has combined with others to subject us to a juris- 
 diction foreign to our constitutions and unacknowledged 
 by our laws ; giving his assent to their acts of pretended 
 legislation : 
 
 For quartering large bodies of armed troops among 
 us; 
 
 For protecting them, by a mock trial, from punish- 
 ment for any murders which they should commit on 
 the inhabitants of these States ; 
 
 For cutting off our trade with all parts of the world ; 
 
 For imposing taxes on us without our consent; 
 
 For depriving us, in many cases, of the benefits of 
 trial by jury; 
 
The Declaration of Independence, 1776. iii 
 
 For transporting us beyond seas to be tried for pre- 
 tended offenses ; 
 
 For abolishing the free system of English laws in a 
 neighboring province, establishing therein an arbitrary 
 government, and enlarging its boundaries, so as to render 
 it at once an example and fit instrument for introducing 
 the same absolute rule into these colonies ; 
 
 For taking away our charters, abolishing our most 
 valuable laws, and altering fundamentally the forms of 
 our governments; 
 
 For suspending our own legislatures, and declaring 
 themselves invested with power to legislate for us in all 
 cases whatsoever. 
 
 He has abdicated government here, by declaring us 
 out of his protection, and waging war against us. 
 
 He has plundered our seas, ravaged our coasts, burnt 
 our towns, and destroyed the lives of our people. 
 
 He is at this time transporting large armies of foreign 
 mercenaries to complete the works of death, desolation, 
 and tyranny, already begun with circumstances of cruelty 
 and perfidy scarcely paralleled in the most barbarous 
 ages, and totally unworthy the head of a civilized nation. 
 
 He has constrained our fellow-citizens, taken captive 
 on the high seas, to bear arms against their country, 
 to become the executioners of their friends and brethren, 
 or to fall themselves by their hands. 
 
 He has excited domestic insurrections amongst us, 
 and has endeavored to bring on the inhabitants of our 
 frontiers, the merciless Indian savages, whose known 
 rule of warfare is an undistinguished destruction of all 
 ages, sexes, and conditions. 
 
 In every stage of these oppressions we have petitioned 
 for redress in the most humble terms; our repeated 
 
112 Constitutional History of New York. 
 
 petitions have been answered only by repeated injury. 
 A prince whose character is thus marked by every act 
 which may define a tyrant, is unfit to be the ruler of a 
 free people. 
 
 Nor have we been wanting in attentions to our British 
 brethren. We have warned them, from time to time, 
 of attempts by their legislature to extend an unwar- 
 rantable jurisdiction over us. We have reminded them 
 of the circumstances of our emigration and settlement 
 here. We have appealed to their native justice and 
 magnanimity, and we have conjured them by the ties 
 of our common kindred to disavow these usurpations, 
 which would inevitably interrupt our connections and 
 correspondence. They, too, have been deaf to the voice 
 of justice and of consanguinity. We must, therefore, 
 acquiesce in the necessity which denounces our separa- 
 tion, and hold them, as we hold the rest of mankind, 
 enemies in war, in peace friends. 
 
 We, therefore, the Representatives of the United 
 States of America, in General Congress assembled, ap- 
 pealing to the Supreme Judge of the world for the 
 rectitude of our intentions, do, in the name, and by 
 authority of the good people of these Colonies, solemnly 
 publish and declare, That these United Colonies are, 
 and of right ought to be, free and independent States; 
 that they are absolved from all allegiance to the British 
 crown, and that all political connexion between them 
 and the State of Great Britain, is and ought to be totally 
 dissolved ; and that, as free and independent States, they 
 have full power to levy war, conclude peace, contract 
 alliances, establish commerce, and to do all other acts 
 and things which independent States may of right do. 
 And for the support of this declaration, with a firm re- 
 
The Declaration of Independence, I'jj6. 
 
 "3 
 
 liance on the protection of Divine Providence, we mutu- 
 ally pledge to each other our lives, our fortunes, and our 
 sacred honour. 
 
 JOHN HANCOCK. 
 
 Georgia, 
 Button Gwinnett. 
 Lyman Hall. 
 Geo. Walton. 
 
 South Carolina. 
 Edward Rutledge. 
 Thos. Hey ward, junr. 
 Thomas Lynch, junr. 
 Arthur Middleton. 
 
 Virginia. 
 George Wythe. 
 Richard Henry Lee. 
 Th. Jefferson. 
 Ben Jan. Harrison. 
 Thos. Nelson, Jr. 
 Francis Lightfoot Lee. 
 Charter Braxton. 
 
 Delaware. 
 Caesar Rodney. 
 Geo. Read. 
 Tho. M'Kean. 
 
 Vol. I. Const. Hist.— & 
 
 North Carolina. 
 Wm. Hooper. 
 Joseph Hewes. 
 John Penn. 
 
 Maryland. 
 Samuel Chase. 
 Wm. Paca. 
 Thos. Stone. 
 
 Charles Carroll of Carroll- 
 ton. 
 
 Pennsylvania. 
 Robt. Morris. 
 Benjamin Rush. 
 Benja. Franklin. 
 John Morton. 
 Geo. Clymer. 
 Jas. Smith. 
 Geo. Taylor. 
 James Wilson. 
 Geo. Ross. 
 
 New York. 
 Wm. Floyd. 
 Phil. Livingston. 
 Fran's Lewis. 
 Lewis Morris. 
 
114 
 
 Constitutional History of New York. 
 
 New Jersey. 
 Richd. Stockton. 
 Jno. Witherspoon. 
 Fras. Hopkinson. 
 John Hart. 
 Abra. Clark. 
 
 Massachusetts Bay. 
 
 Saml. Adams. 
 John Adams. 
 Robt. Treat Paine. 
 Elbridge Gerry. 
 
 New Hampshire. 
 Josiah Bartlett. 
 Wm. Whipple. 
 Matthew Thornton. 
 
 Rhode Island and Provi- 
 dence, &c. 
 
 Step. Hopkins. 
 William Ellery. 
 
 Connecticut. 
 Roger Sherman. Wm. Williams. 
 
 Saml. Huntington. Oliver Wolcott. 
 
Articles of Confederation, 1778. 115 
 
 ARTICLES OF CONFEDERATION, 1778. 
 
 On the 17th of November, 1777, the Continental 
 Congress submitted to the several states proposed 
 Articles of Confederation which had been adopted on 
 the iSth, accompanied by an eloquent and impressive 
 appeal to the legislatures to take immediate action. The 
 Articles are described as "a plan of confederacy for 
 securing the freedom, sovereignty, and independence of 
 the United States." New York ratified the Articles 
 on the 6th of February, 1778. On the 9th of July, 
 1778, the Articles were ratified by the delegates in Con- 
 gress from New Hampshire, Massachusetts Bay, Rhode 
 Island and Providence Plantations, Connecticut, New 
 York, Pennsylvania, Virginia, and South Carolina. 
 North Carolina had ratified the Articles, but that state 
 and Georgia were not then represented in Congress. 
 The delegates from New Jersey, Delaware, and Mary- 
 land had not then been authorized to sign the Articles. 
 Mai-yland, which was "the last state to act, ratified the 
 Articles on the 30th of January, 1781, and the dele- 
 gates from that state signed them on the ist of March 
 following. This completed the ratification. 
 
 The ratification by New York, in 1778, was subject 
 to the approval of the Articles by all the other states; 
 but on the 23d of October, 1779, a supplemental act 
 was passed, dispensing with such unanimous approval 
 so far as New York was concerned, and authorizing 
 its delegates in Congress to join with the delegates 
 from so many of the other states as might be judged 
 "proper and competent for mutual defense and perma- 
 nent security." It is a noteworthy fact that when the 
 Articles were finally ratified by all the states, March 
 I, 1 78 1, the Revolutionary War was nearly over. Corn- 
 
ii6 Constitutional History of Neiv York. 
 
 wallis surrendered in October following, and there was 
 little actual war after that time, although two years 
 more elapsed before peace was finally consummated. 
 The student of the Federal Constitution cannot fail 
 to observe that many provisions in the Articles appear 
 again in the Constitution, sometimes in substance, but 
 often in the same language used here. While the 
 Articles were conceded to be inadequate, the problem 
 of uniting the states was an exceedingly difficult one, 
 and it is a high tribute to the wisdom and patriotism 
 of the statesmen of that period that they were able to 
 maintain even the semblance of a government under 
 such unfavorable conditions. The Articles appear to 
 be dated July 9, 1778. This is the date on which a 
 majority of the delegates signed them; but, as already 
 pointed out, nearly three years elapsed before the rati- 
 fication became complete. For the reader's convenience 
 I have prefixed a title to each article. 
 
 ARTICLES OF CONFEDERATION, &c. 
 
 TO ALL TO WHOM THESE PRESENTS SHALL COME, 
 
 Wcj the undersigned, Delegates of the States afUxed to 
 our names, send greeting: 
 
 Whereas The Delegates of the United States of 
 America in Congress assembled did, on the fifteenth 
 day of November, in the year of our Lord one thou- 
 sand seven hundred and seventy-seven, and in the second 
 year of the independence of America, agree to certain 
 articles of confederation and perpetual union between 
 the states of New Hampshire, Massachusetts Bay, 
 Rhode-Island and Providence Plantations, Connecti- 
 cut, New York, New Jersey, Pennsylvania, Delaware, 
 
Articles of Confederation, iy^8. 117 
 
 Maryland, Virginia, North Carolina, South Carolina, 
 and Georgia, in the words following, viz.: 
 
 Articles of Confederation and perpetual Union be- 
 tv/een the States of New-Hampshire, Massachu- 
 setts-Bay, Rhode-Island and Providence Planta- 
 tions, Connecticut, New York, New Jersey, Penn- 
 sylvania, Delaware, Maryland, Virginia, North 
 Carolina, South Carolina, and Georgia. 
 
 Art. I. [New nation named.] — The style of this 
 confederacy shall be "The United States of America." 
 
 Art. 2. [State sovereignty reserved.] — Each state 
 retains its sovereignty, freedom, and independence, and 
 every power, jurisdiction, and right which is not by this 
 confederation expressly delegated to the United States 
 in Congress assembled. 
 
 Art. 3. [Purpose of confederation.] — The said 
 states hereby severally enter into a firm league of friend- 
 ship with each other for their common defense, the 
 security of their liberties, and their mutual and general 
 welfare, binding themselves to assist each other against 
 all force offered to, or attacks made upon, them, or 
 any of them, on account of religion, sovereignty, trade, 
 or any other pretence whatever. 
 
 Art. 4. [Privileges and immunities of citizens; fu- 
 gitives from justice; judgments conclusive in other 
 states.] — The better to secure and perpetuate mutual 
 friendship and intercourse among the people of the dif- 
 ferent states in this union, the free inhabitants of each 
 of these states, paupers, vagabonds, and fugitives from 
 justice excepted, shall be entitled to all privileges and 
 immunities of free citizens in the several states; and 
 the people of each state shall have free ingress and re- 
 gress to and from any other state, and shall enjoy therein 
 
ii8 Constitutional History of New York. 
 
 all the privileges of trade and commerce, subject to the 
 same duties, impositions, and restrictions as the inhabi- 
 tants thereof respectively, provided that such restric- 
 tions shall not extend so far as to prevent the removal 
 of property imported into any state to any other state, 
 of which the owner is an inhabitant; provided also, 
 that no imposition, duties, or restriction, shall be laid by 
 any state on the property of the United States or either 
 of them. 
 
 If any person guilty of or charged with treason, felony, 
 or other high misdemeanor, in any state, shall flee from 
 justice, and be found in any of the United States, he 
 shall, upon demand of the governor or executive power 
 of the state from which he fled, be delivered up, and 
 removed to the state having jurisdiction of his offense. 
 
 Full faith and credit shall be given in each of these 
 states to the records, acts, and judicial proceedings of 
 the courts and magistrates of every other state. 
 
 Art. 5. [Congress, how constituted; privileges of 
 members.] — For the more convenient management 
 of the general interests of the United States, delegates 
 shall be annually appointed in such manner as the legis- 
 lature of each state shall direct, to meet in Congress 
 on the first Monday in November, in every year, with 
 a power reserved to each state to recall its delegates 
 or any of them, at any time within the year, and to send 
 others in their stead for the remainder of the year. 
 
 No state shall be represented in Congress by less than 
 two nor by more than seven members; and no person 
 shall be capable of being a delegate for more than three 
 years in any term of six years; nor shall any person, 
 being a delegate, be capable of holding any office under 
 the United States, for which he, or another for his 
 benefit, receives any salary, fees, or emolument of any 
 kind. 
 
Articles of Confederation, 1778. 119 
 
 Each state shall maintain its own delegates in a meet- 
 ing of the states, and while they act as members of the 
 committee of the states. 
 
 In determining questions in the United States in Con- 
 gress assembled, each state shall have one vote. 
 
 Freedom of speech and debate in Congress shall not 
 be impeached or questioned in any court or place out 
 of Congress; and the members of Congress shall be 
 protected in their persons from arrests and imprison- 
 ments, during the time of their going to and from and 
 attendance on Congress, except for treason, felony, or 
 breach of the peace. 
 
 Art. 6. [Treaties regulated; treaty imposts pro- 
 tected; state naval and military forces limited; mili- 
 tia; war by state regulated.] — No state, without the 
 consent of the United States in Congress assembled, shall 
 send any embassy to, or receive any embassy from, or 
 enter into any conference, agreement, alliance, or treaty 
 with, any king, prince, or state ; nor shall any person hold- 
 ing any office of profit or trust under the United States, 
 or any of them, accept of any present, emolument, office, 
 or title of any kind whatever, from any king, prince, 
 or foreign state; nor shall the United States in Con- 
 gress assembled, or any of them, grant any title of 
 nobility. 
 
 No two or more states shall enter into any treaty, 
 confederation, or alliance whatever between them, with- 
 out the consent of the United States in Congress as- 
 sembled, specifying accurately the purposes for which 
 the same is to be entered into, and how long it shall con- 
 tinue. 
 
 No state shall lay any imposts or duties, which may 
 interfere with any stipulations in treaties entered into 
 by the United States in Congress assembled, with any 
 king, prince, or state, in pursuance of any treaties al- 
 
I20 Constitutional History of New York. 
 
 ready proposed by Congress to the courts of France and 
 Spain. 
 
 No vessels of war shall be kept up in time of peace 
 by any state, except such number only as shall be deemed 
 necessary by the United States in Congress assembled 
 for the defense of such state or its trade; nor shall any 
 body of forces be kept up by any state in time of peace, 
 except such number only as, in the judgment of the 
 United States in Congress assembled, shall be deemed 
 requisite to garrison the forts necessary for the defense 
 of such state ; but every state shall always keep up a well 
 regulated and disciplined militia, sufficiently armed and 
 accoutred, and shall provide and have constantly ready 
 for use, in public stores, a due number of field pieces 
 and tents, and a proper quantity of arms, ammunition, 
 and camp equipage. 
 
 No state shall engage in any war without the consent 
 of the United States in Congress assembled, unless such 
 state be actually invaded by enemies, or shall have re- 
 ceived certain advice of a resolution being formed by 
 some nation of Indians to invade such state, and the 
 danger is so imminent as not to admit of delay till the 
 United States in Congress assembled can be consulted; 
 nor shall any state grant commissions to any ships or ves- 
 sels of war, nor letters of marque or reprisal, except it be 
 after a declaration of war by the United States in Con- 
 gress assembled, and then only against the kingdom or 
 state, and the subjects thereof, against which war has 
 been so declared, and under such regulations as shall be 
 established by the United States in Congress assembled, 
 unless such state be infested by pirates, in which case 
 vessels of war may be fitted out for that occasion, and 
 kept so long as the danger shall continue, or until the 
 United States in Congress assembled shall determine 
 otherwise. 
 
Articles of Confederation, 1778. 121 
 
 Art. 7. [Military officers, how appointed.] — When 
 land forces are raised by any state for the common de- 
 fense, all officers of or under the rank of colonel shall 
 be appointed by the legislature of each state respectively 
 by whom such forces shall be raised, or in such manner 
 as such state shall direct; and all vacancies shall be 
 filled up by the state which first made the appointment. 
 
 Art. 8. [Military expenses, how apportioned.] — 
 All charges of war, and all other expenses that shall 
 be incurred for the common defense or general welfare, 
 and allowed by the United States in Congress assembled, 
 shall be defrayed out of a common treasury, which 
 shall be supplied by the several states in proportion to 
 the value of all land within each state granted to or 
 surveyed for any person, as such land and the build- 
 ings and improvements thereon shall be estimated, ac- 
 cording to such mode as the United States in Congress 
 assembled shall, from time to time, direct and appoint. 
 
 The taxes for paying that proportion shall be laid 
 and levied by the authority and direction of the legis- 
 latures of the several states, within the time agreed upon 
 by the United States in Congress assembled. 
 
 Art. 9. [Powers of Congress.] — The United States 
 in Congress assembled shall have the sole and exclusive 
 right and power of determining on peace and war, ex- 
 cept in the cases mentioned in the sixth article; of 
 sending and receiving ambassadors ; entering into treaties 
 and alliances; provided, that no treaty of commerce 
 shall be made whereby the legislative power of the re- 
 spective states shall be restrained from imposing such 
 imposts and duties on foreigners as their own people 
 are subjected to, or from prohibiting the exportation or 
 importation of any species of goods or commodities 
 whatsoever; of establishing rules for deciding, in all 
 cases, what captures on land or water shall be legal, and 
 
122 Constitutional History of New York. 
 
 in what manner prizes taken by land or naval forces in 
 the service of the United States shall be divided or ap- 
 propriated; of granting letters of marque and reprisal, 
 in times of peace; appointing courts for the trial of 
 piracies and felonies committed on the high seas, and 
 establishing courts for receiving and determining finally 
 appeals in all cases of captures ; provided, that no mem- 
 ber of Congress shall be appointed a judge of any of 
 the said courts. 
 
 The United States in Congress assembled shall also be 
 the last resort on appeal in all disputes and differences 
 now subsisting or that hereafter may arise between two 
 or more states concerning boundary, jurisdiction, or any 
 other cause whatever; which authority shall always be 
 exercised in the manner following : whenever the legisla- 
 tive or executive authority or lawful agent of any state in 
 controversy with another shall present a petition to Con- 
 gress, stating the matter in question, and prayihg for a 
 hearing, notice thereof shall be given by order of Con- 
 gress to the legislative or executive authority of the other 
 state in controversy, and a day assigned for the appear- 
 ance of the parties, by their lawful agents, who shall then 
 be directed to appoint by joint consent commissioners or 
 judges to constitute a court for hearing and determining 
 the matter in question ; but if they cannot agree Congress 
 shall name three persons out of each of the United States, 
 and from the list of such persons each party shall alter- 
 nately strike out one, the petitioners beginning, until the 
 number shall be reduced to thirteen ; and from that num- 
 ber not less than seven nor more than nine names, as Con- 
 gress shall direct, shall, in the presence of Congress, be 
 drawn out by lot; and the persons whose names shall be 
 so drawn, or any five of them, shall be commissioners or 
 judges, to hear and finally determine the controversy, so 
 always as a major part of the judges, who shall hear 
 
Articles of Confederation, 1778. 123 
 
 the cause, shall agree in the determination; and if either 
 party shall neglect to attend at the day appointed, with- 
 out showing reasons which Congress shall judge suf- 
 ficient, or, being present, shall refuse to strike, the Con- 
 gress shall proceed to nominate three persons out of 
 each state, and the secretary of Congress shall strike in 
 behalf of such party absent or refusing; and the judg- 
 ment and sentence of the court to be appointed in 
 the manner before prescribed, shall be final and con- 
 clusive; and if any of the parties shall refuse to submit 
 to the authority of such court, or to appear, or 
 defend their claim or cause, the court shall neverthe- 
 less proceed to pronounce sentence or judgment, which 
 shall in like manner be final and decisive, the judg- 
 ment or sentence and other proceedings, being in either 
 case transmitted to Congress, and lodged among the acts 
 of Congress for the security of the parties concerned: 
 provided, that every commissioner, before he sits in 
 judgment, shall take an oath, to be administered by one 
 of the judges of the supreme or superior court of the 
 state, where the cause shall be tried, "well and truly to 
 hear and determine the matter in question, according 
 to the best of his judgment, without favor, affection, 
 or hope of reward ;" provided also that no state shall be 
 deprived of territory for the benefit of the United States. 
 All controversies concerning the private right of soil, 
 claimed under different grants of two or more states, 
 whose jurisdiction as they may respect such lands and the 
 states which passed such grants are adjusted, the said 
 grants or either of them being at the same time claimed 
 to have originated antecedent to such settlement of juris- 
 diction, shall, on the petition of either party to the Con- 
 gress of the United States, be finally determined, as 
 near as may be, in the same manner as is before pre- 
 
124 Constitutional History of New York. 
 
 scribed for deciding disputes respecting territorial ju- 
 risdiction between different states. 
 
 The United States in Congress assembled shall also 
 have the sole and exclusive right and power of regu- 
 lating the alloy and value of coin struck by their own 
 authority, or by that of the respective states; fixing 
 the standard of weights and measures throughout the 
 United States; regulating the trade and managing all 
 affairs with the Indians not members of any of the 
 states; provided that the legislative right of any state 
 within its own limits be not infringed or violated; es- 
 tablishing and regulating postoffices from one state to 
 another throughout all the United States, and exacting 
 such postage on the papers passing through the same as 
 may be requisite to defray the expenses of the said of- 
 fice; appointing all officers of the land forces in the 
 service of the United States, excepting regimental offi- 
 cers; appointing all the officers of the naval forces, and 
 commissioning all officers whatever in the service of the 
 United States; making rules for the government and 
 regulation of the said land and naval forces, and direct- 
 ing their operations. 
 
 The United States in Congress assembled shall have 
 authority to appoint a committee to sit in the recess of 
 Congress, to be denominated "a committee of the states ;" 
 and to consist of one delegate from each state, and to 
 appoint such other committees and civil officers as may 
 be necessary for managing the general affairs of the 
 United States, under their direction; to appoint one of 
 their number to. preside, provided that no person be al- 
 lowed to serve in the office of president more than one 
 year in any term of three years; to ascertain the neces- 
 sary sums of money to be raised for the service of the 
 United States, and to appropriate and apply the same 
 for defraying the public expenses; to borrow money 
 
Articles of Confederation, iJjS. 125 
 
 or emit bills on the credit of the United States, trans- 
 mitting every half year to the respective states an ac- 
 count of the sums of. money so borrowed or emitted; 
 to build and equip a navy; to agree upon the number 
 of land forces, and to make requisitions from each state 
 for its quota, in proportion to the number of white in- 
 habitants in such state; which requisition shall be bind- 
 ing, and thereupon the legislature of each state shall 
 appoint the regimental officers, raise the men, and clothe, 
 arm, and equip them in a soldier-like manner, at 
 the expense of the United States; and the officers and 
 men so clothed, armed, and equipped, shall march to 
 the place appointed, and within the time agreed on by 
 the United States in Congress assembled; but if the 
 United States, in Congress assembled, shall, on consid- 
 eration of circumstances, judge proper that any state 
 should not raise men or Should raise a smaller number 
 than its quota, and that any other state should raise a 
 greater number of men than the quota thereo.f, such 
 extra number shall be raised, officered, clothed, armed, 
 and equipped, in the same manner as the quota of such 
 state, unless the legislature of such state shall judge 
 that such extra number cannot be safely spared out of 
 the same; in which case they shall raise, officer, clothe, 
 arm, and equip, as many of such extra number as they 
 judge can be safely spared. And the officers and men 
 so clothed, armed, and equipped, shall march to the place 
 appointed, and within the time agreed on by the 
 United States in Congress assembled. 
 
 The United States in Congress assembled shall 
 never engage in a war, nor grant letters of marque and 
 reprisal in time of peace, nor enter into any treaties or 
 alliances, nor coin money, nor regulate the value there- 
 of, nor ascertain the sums and expenses necessary for 
 the defense and welfare of the United States or any 
 
126 Constitutional History of New York. 
 
 of them, nor emit bills, nor borrow money on the credit 
 of the United States, nor appropriate money, nor agree 
 upon the number of vessels of war to be built or 
 purchased, or the number of land or sea forces to 
 be raised, nor appoint a commander-in-chief of the 
 army or navy unless nine states assent to the same; nor 
 shall a question on any other point, except for adjourn- 
 ing from day to day, be determined, unless by the 
 votes of a majority of the United States in Congress 
 assembled. 
 
 The Congress of the United States shall have power 
 to adjourn to any time within the year, and to any 
 place within the United States, so that no period of 
 adjournment be for a longer duration than the space of 
 six months; and shall publish the journal of their pro- 
 ceedings monthly, except such parts thereof relating 
 to treaties, alliances, or military operations, as, in their 
 judgment, require secrecy; and the yeas and nays of 
 the delegates of each state on any question shall be 
 entered on the journal, when it is desired by any dele- 
 gate; and the delegates of a state, or any of them, at 
 his or their request, shall be furnished with a transcript 
 of the said journal, except such parts as are above ex- 
 cepted, to lay before the legislatures of the several states. 
 
 Art. lo. [Powers of recess committee.] — The com- 
 mittee of the states, or any nine of them, shall be 
 authorized to execute in the recess of Congress, such 
 of the powers of Congress as the United States in 
 Congress assembled, by the consent of nine states, shall, 
 from time to time, think expedient to vest them with; 
 provided that no power be delegated to the said com- 
 mittee, for the exercise of which, by the articles of con- 
 federation, the voice of nine states in the Congress of 
 the United States assembled is requisite. 
 
 Art. II. [Canada may join Union.] — Canada ac- 
 
Articles of Confederation, I'J'jS. 127 
 
 ceding to this confederation, and joining in the meas- 
 ures of the United States, shall be admitted into, and 
 entitled to, all the advantages of this union; but no 
 other colony shall be admitted into the same unless 
 such admission be agreed to by nine states. 
 
 Art. 12. [Prior public debts secured.] — All bills of 
 credit emitted, moneys borrowed, and debts contracted, 
 by or under the authority of Congress, before the as- 
 sembling of the United States, in pursuance of the pres- 
 ent confederation, shall be deemed and considered as a 
 charge against the United States, for payment and sat- 
 isfaction whereof the said United States and the pub- 
 lic faith are hereby solemnly pledged. 
 
 Art. 13. [Effect of articles; amendments.] — Every 
 state shall abide by the determination of the United 
 States in Congress assembled, on all questions which, by 
 this confederation, are submitted to them. And the 
 articles of this confederation shall be inviolably observed 
 by every state, and the union shall be perpetual ; nor shall 
 any alteration at any time hereafter be made in any 
 of them, unless such alteration be agreed to in a con- 
 gress of the United States, and be afterwards confirmed 
 by the legislature of every state. 
 
 And whereas it has pleased the Great Governor of the 
 world to incline the hearts of the legislatures we re- 
 spectfully represent in Congress, to approve of and to 
 authorize us to ratify the said articles of confederation 
 and perpetual union : Know ye. That we, the under- 
 signed delegates, by virtue of the power and authority 
 to us given for that purpose, do, by these presents, in 
 the name and in behalf of our respective constituents, 
 fully and entirely ratify and confirm each and every of 
 the said articles of confederation and perpetual union, 
 and all and singular the matters and things therein con- 
 tained; and we do further solemnly plight and engage 
 
128 Constitutional History of New York. 
 
 the faith of our respective constituents, that they shall 
 abide by the determinations of the United States in 
 Congress assembled, on all questions which, by the said 
 confederation, are submitted to them; and that the arti- 
 cles thereof shall be inviolably observed by the. states 
 we respectively represent; and that the union shall be 
 perpetual. 
 
 In witness whereof, we have hereunto set our hands, 
 in Congress. Done at Philadelphia, in the state of 
 Pennsylvania, the ninth day of July, in the year of our 
 Lord one thousand seven hundred and seventy-eight, 
 and in the third year of the independence of America. 
 
 On the part and behalf of the state of New-Hampshire. 
 Josiah Bartlett, John Wentworth, Jun., Aug. 
 
 8, 1778- 
 On the part and behalf of the state of Massachusetts Bay. 
 John Hancock, Francis Dana, 
 
 Samuel Adams, James Lovell, 
 
 Elbridge Gerry, Samuel Holten. 
 
 On the part and in behalf of the state of Rhode-Island 
 
 and Providence Plantations. 
 William Ellery, John Collins. 
 
 Henry Marchant, 
 
 On the part and behalf of the state of Connecticut. 
 Roger Sherman, Titus Hosmer, 
 
 Samuel Huntington, Andrew Adams. 
 
 Oliver Wolcott, 
 
 On the part and behalf of the state of New-York. 
 Jas. Duane, Wm. Duer, 
 
 Fra. Lewis, Gouv. Morris. 
 
 On the part and in behalf of the state of New-Jersey. 
 Jno. Witherspoon, Nat.Scudder, Nov. 26, 1778. 
 
Articles of Confederation, 1778. 129 
 
 On the part and behalf of the state of Pennsylvania. 
 Robt. Morris, William Clingan, 
 
 Daniel Roberdeau, Joseph Reed, 226. July, 1778. 
 
 Jona. Bayard Smith, 
 
 On the part and behalf of the state of Delaware. 
 The. M'Kean, Feb. 13, Nicholas Van Dyke. 
 
 1779. 
 John Dickinson, May 5th, 
 
 1779. 
 
 On the part and behalf of the state of Maryland. 
 John Hanson, March i, Nathaniel Carroll, do. 
 1781. 
 
 On the part and behalf of the state of Virginia. 
 Richard Henry Lee, J no. Harvie, 
 
 John Banister, Francis Lightfoot Lee. 
 
 Thomas Adams, 
 
 On the part and behalf of the state of North-Carolina. 
 John Penn, July 21st, 1778. Jno. Williams. 
 Corns. Harnett, 
 
 On the part and behalf of the state of South-Carolina. 
 Henry Laurens, Richard Hutson, 
 
 William Henry Drayton, Thos. Heyward, Jun. 
 Jno. Mathews, 
 
 On the part and behalf of the state of Georgia. 
 Jno. Walton, 24th July, Edwd. Telfair, 
 
 1778. Edwd. Langworthy. 
 
 Vol. I. Const. Hist. — 9. 
 
130 Constitutional History of New York. 
 
 THE CONSTITUTION OF THE UNITED 
 STATES, 1787. 
 
 The weakness of the Articles of Confederation was 
 generally conceded almost from their inception; and it 
 became evident, even before they were ratified, that they 
 did not provide a bond of union sufficient for a new 
 nation with such unexampled possibilities. As early 
 as 1780 Alexander Hamilton advocated a convention 
 of all the states for the purpose of reforming the evils 
 of the existing government, and the subject became a 
 matter of public discussion soon after the articles had 
 been finally ratified. 
 
 The legislature of New York took up the subject in 
 the summer of 1782; and on the 20th of July, the state 
 senate passed an important series of resolutions relat- 
 ing to the "state of the Nation," reciting, among other 
 things, that "in the opinion of this legislature, the rad- 
 ical source of most of our embarrassments is the want 
 of sufficient power in Congress to effectuate that ready 
 and perfect cooperation of the different states, on which 
 their immediate safety and future happiness depends; 
 that experience has demonstrated the Confederation to 
 be defective in several essential points, particularly in 
 not vesting the Federal government either with a power 
 of providing revenue for itself, or with ascertained and 
 productive funds, secured by a sanction so solemn and 
 general as would inspire the fullest confidence in them, 
 and make them a substantial basis of credit; that these 
 defects ought to be, without loss of time, repaired, the 
 powers of Congress extended, a solid security estab- 
 lished for the payment of debts already incurred, and 
 competent means provided for future credit, and for 
 supplying the current demands of the war. That it 
 
The Constitution of the United States, 1787. 131 
 
 appears to this legislature that the foregoing important 
 ends can never be attained by partial deliberations 
 of the states, separately; but that it is essential to the 
 common welfare that there should be, as soon as possi- 
 ble, a conference of the whole on the subject ; and that 
 it would be advisable for this purpose, to propose to Con- 
 gress to recommend, and to each state to adopt, the 
 measure of assembling a general convention of the states, 
 especially authorized to revise and amend the Con- 
 federation, reserving a right to the respective legisla- 
 tures to ratify their determinations." 
 
 The resolutions were concurred in the next day by 
 the assembly, and on the 22d the governor was requested 
 to transmit copies to Congress and to each state execu- 
 tive. New York was not alone in appreciating the de- 
 fects of the Confederation, but I believe this was the 
 earliest legislative action recommending a general con- 
 vention to revise the form of government. 
 
 In January, 1786, Virginia initiated a movement for a 
 convention of delegates from the several states to con- 
 sider important questions relating to trade and com- 
 merce. New York joined in this movement, but a ma- 
 jority of the states did not, and the convention was 
 therefore unable to accomplish its primary purpose. It 
 reported the situation to Congress, expressing the opin- 
 ion in substance that the Confederation was inefficient, 
 and that it was necessary to devise "such farther pro- 
 visions as shall render the same adequate to the ex- 
 igencies of the Union," and recommending a conven- 
 tion to frame a new constitution. Congress concurred 
 in this view, and on the 21st of February, 1787, adopted 
 a resolution recommending a general convention "for 
 the sole and express purpose of revising the Articles of 
 Confederation, and reporting to Congress and the sev- 
 eral legislatures such alterations and provisions therein 
 
132 Constitutional History of New York. 
 
 as shall, when agreed to in Congress, and confirmed by 
 the states, render the Federal Constitution adequate to 
 the exigencies of government, and the preservation of 
 the Union," and fixed the second Monday of May as the 
 day for holding the convention. The resolution thus 
 adopted was presented by the delegates from Massa- 
 chusetts, and the preamble referred particularly to the 
 action of New York in reference to a convention. 
 
 The convention was organized in Philadelphia on the 
 25th of May, 1787, by the election of George Wash- 
 ington as president, and William Jackson as secretary. 
 The convention adjourned on the 17th of September. 
 It transmitted the constitution to Congress, with the 
 recommendation that it be submitted to conventions 
 chosen by the people in the several states, and that it be 
 put in operation upon receiving the assent of nine states. 
 Congress approved this action, and conventions were 
 accordingly held for the purpose of considering the new 
 constitution. It was ratified by the states in the follow- 
 ing order: Delaware, December 7, 1787; Pennsylvania, 
 December 12, 1787; New Jersey, December 18, 1787; 
 Georgia, January 2, 1788; Connecticut, January 9, 1788; 
 Massachusetts, February 6, 1788; Maryland, April 28, 
 1788; South Carolina, May 23, 1788; New Hampshire, 
 June 21, 1788; Virginia, June 26, 1788; New York, July 
 26, 1788; North Carolina, November 21, 1789: Rhode 
 Island, May 29, 1790. 
 
 PREAMBLE. 
 
 We, the people of the United States, in order to form 
 a more perfect union, establish justice, ensure domestic 
 tranquillity, provide for the common defense, promote 
 the general welfare, and secure the blessings of liberty 
 to ourselves and our posterity, do ordain and establish 
 this Constitution for the United States of America : 
 
The Constitution of the United StateSj 1787. 133 
 
 ARTICLE I. 
 Section i. 
 
 I. [Legislative power.] — All legislative powers, 
 herein granted, shall be vested in a congress of the 
 United States, which shall consist of a senate and house 
 of representatives. 
 
 Section 2. 
 
 1. [House of Representatives; qualification of elect- 
 ors.] — The House of Representatives shall be com- 
 posed of members chosen every second year by the people 
 of the several states; and the electors in each state shall 
 have the qualifications requisite for electors of the most 
 numerous branch of the state legislature. 
 
 2. [Qualifications of representative.] — No person 
 shall be a representative who shall not have attained to 
 the age of twenty-five years, and been seven years a 
 citizen of the United States, and who shall not, when 
 elected, be an inhabitant of that state in which he shall 
 be chosen. 
 
 3. [Apportionment of representatives and taxes.] 
 — Representatives and direct taxes shall be appor- 
 tioned among the several states which may be included 
 within this Union, according to their respective num- 
 bers, which shall be determined by adding to the whole 
 number of free persons, including those bound to serv- 
 ice for a term of years, and excluding Indians not taxed, 
 three fifths of all other persons. The actual enumera- 
 tion shall be made within three years after the first meet- 
 ing of the Congress of the United States, and within 
 every subsequent term of ten years, in such manner as 
 they shall by law direct. The number of representa- 
 tives shall not exceed one for every thirty thousand, 
 but each state shall have at least one representative ; and 
 
134 Constitutional History of New York. 
 
 until such enumeration shall be made, the state of New 
 Hampshire shall be entitled to choose three, Massa- 
 chusetts eight, Rhode Island and Providence Plantations 
 one, Connecticut five. New York six. New Jersey four, 
 Pennsylvania eight, Delaware one, Maryland six, Vir- 
 ginia ten. North Carolina five. South Carolina five, and 
 Georgia three. 
 
 4. [Vacancies.] — When vacancies happen in the 
 representation from any state, the executive authority 
 thereof shall issue writs of election to fill such vacancies. 
 
 5. [Pov\7ers of House; speaker and officers; im- 
 peachment.] — The House of Representatives shall 
 choose their speaker and other officers; and shall have 
 the sole power of impeachment. 
 
 Section 3. 
 
 1. [Senate.] — The Senate of the United States 
 shall be composed of two senators from each state, 
 chosen by the legislature thereof, for six years ; and each 
 senator shall have one vote. 
 
 2. [Classification; vacancies.] — Immediately after 
 they shall be assembled, in consequence of the first elec- 
 tion, they shall be divided, as equally as may be, into 
 three classes. The seats of the senators of the first 
 class shall be vacated at the expiration of the second 
 year, of the second class at the expiration of the fourth 
 year, and of the third class at the expiration of the sixth 
 year, so that one third may be chosen every second year; 
 and if vacancies happen, by resignation or otherwise, 
 during the recess of the legislature of any state, the 
 executive thereof may make temporary appointments 
 until the next meeting of the legislature, which shall then 
 fill such vacancies. 
 
 3. [Qualifications of senator.] — No person shall be 
 a senator who shall not have attained to the age of thirty 
 
The Constitution of the United States, I'jS'j. 135 
 
 years, and been nine years a citizen of the United States, 
 and who shall not, when elected, be an inhabitant of 
 that state for which he shall be chosen. 
 
 4. [President of the Senate.] — The Vice President 
 of the United States shall be president of the Senate, 
 but shall have no vote unless they be equally divided. 
 
 5. [Officers of the Senate.] — ^The Senate shall 
 choose their other officers, and also a president pro 
 tempore, in the absence of the Vice President, or when he 
 shall exercise the ofiSce of President of the United States. 
 
 6. [Trial of impeachments.] — The Senate shall 
 have the sole power to try all impeachments. When sit- 
 ting for that purpose, they shall be on oath or affirmation. 
 When the President of the United States is tried, the 
 chief justice shall preside; and no person shall be con- 
 victed without the concurrence of two thirds of the mem- 
 bers present. 
 
 7. [Judgment in cases of impeachment.] — ^Judg- 
 ment, in cases of impeachment, shall not extend further 
 than to removal from office, and disqualification to hold 
 and enjoy any office of honor, trust, or profit, under the 
 United States; but the party convicted shall, neverthe- 
 less, be liable and subject to indictment, trial, judg- 
 ment, and punishment, according to law. 
 
 Section 4. 
 
 1. [Senators and representatives, how elections reg- 
 ulated.] — The times, places, and manner of holding 
 elections for senators and representatives shall be pre- 
 scribed in each state by the legislature thereof; but the 
 Congress may, at any time, by law, make or alter such 
 regulations, except as to the places of choosing senators. 
 
 2. [Annual session of Congress.] — The Congress 
 shall assemble at least once in every year; and such 
 
136 Constitutional History of New York. 
 
 meeting shall be on the first Monday in December, unless 
 they shall, by law, appoint a different day. 
 
 Section 5. 
 
 1. fGeheral powers.] — Each house shall be the 
 judge of the elections, returns, and qualifications of its 
 own members, and a majority of each shall constitute 
 a quorum to do business; but a smaller number may 
 adjourn from day to day, and may be authorized to 
 compel the attendance of absent members, in such man- 
 ner and under such penalties as each house may provide. 
 
 2. [Rules; punishment of members.] — Each house 
 may determine the rules of its pi'oceedings, punish its 
 members for disorderly behavior, and, with the concur- 
 rence of two thirds, expel a member. 
 
 3. [Journals; yeas and nays.] — Each house shall 
 keep a journal of its proceedings, and, from time to 
 time, publish the same, excepting such parts as may, in 
 their judgment, require secrecy; and the yeas and nays 
 of the members of either house, on any question, shall, 
 at the desire of one fifth of those present, be entered on 
 the journal. 
 
 4. [Adjournments.] — Neither house, during the 
 session of Congress, shall, without the consent of the 
 other, adjourn for more than three days, nor to any 
 other place than that in which the two houses shall be 
 sitting. 
 
 Section 6. 
 
 I. [Compensation; privileges.] — The senators and 
 representatives shall receive a compensation for their 
 services, to be ascertained by law, and paid out of the 
 treasury of the United States. They shall, in all cases, 
 except treason, felony, and breach of the peace, be priv- 
 ileged from arrest during their attendance at the ses- 
 
The Constitution of the United States, 1787. 137 
 
 sion of their respective houses, and in going to and re- 
 turning from the same; and for any speech or debate 
 in either house they shall not be questioned in any other 
 place. 
 
 2. [Members not to hold certain offices.] — No sena- 
 tor or representative shall, during the time for which he 
 was elected, be appointed to any civil office under the 
 authority of the United States, which shall have been 
 created, or the emoluments whereof shall have been in- 
 creased, during such time ; and no , person holding any 
 office under the United States shall be a member of either 
 house during his continuance in office. 
 
 Section- 7. 
 
 1. [Revenue bills.] — All bills for raising revenue 
 shall originate in the House of Representatives ; but the 
 Senate may propose or concur with amendments, as on 
 other bills. 
 
 2. [President's action on bills; repassage.] — Every 
 bill which shall have passed the House of Representatives 
 and the Senate shall, before it becomes a law, be pre- 
 sented to the President of the United States; if he ap- 
 prove he shall sign it, but if not, he shall return it, with 
 his objections, to that house in which it shall have orig- 
 inated, who shall enter the objections, at large, on their 
 journal, and proceed to reconsider it. If, after such 
 reconsideration, two thirds of that house shall agree to 
 pass the bill, it shall be sent, together with the objec- 
 tions, to the other house, by which it shall likewise be 
 reconsidered, and if approved by two thirds of that 
 house, it shall become a law. But in all cases the votes 
 of both houses shall be determined by yeas and nays, 
 and the names of the persons voting for and against 
 the bill shall be entered on the journal of each house 
 
138 Constitutional History of New York. 
 
 respectively. If any bill shall not be returned by the 
 President within ten days (Sundays excepted) after it 
 shall have been presented to him, the same shall be a 
 law, in like manner as if he had signed it, unless the 
 Congress, by their adjournment, prevent its return, in 
 which case it shall not be a law. 
 
 3. [Concurrent resolutions, President's approval.] 
 — Every order, resolution, or vote to which the con- 
 currence of the Senate and House of Representatives 
 may be necessary (except on a question of adjournment) 
 shall be presented to the President of the United States ; 
 and before the same shall take effect, shall be approved 
 by him ; or, being disapproved by him, shall be re-passed 
 by two thirds of the Senate and House of Representa- 
 tives, according to the rules and limitations prescribed 
 in the case of a bill. 
 
 Section 8. 
 
 [Powers of Congress.] — The Congress shall have 
 power : 
 
 1. To lay and collect taxes, duties, imposts, and ex- 
 cises; to pay the debts and provide for the common 
 defense and general welfare of the United States; but 
 all duties, imposts, and excises shall be uniform 
 throughout the United States ; 
 
 2. To borrow money on the credit of the United 
 States ; 
 
 3. To regulate commerce with foreign nations, and 
 among the several states, and with the Indian tribes ; 
 
 4. To establish an uniform rule of naturalization, and 
 uniform laws on the subject of bankruptcies throughout 
 the United States ; 
 
 5. To coin money, regulate the value thereof, and of 
 foreign coin; and fix the standard of weights and meas- 
 ures; 
 
The Constitution of the United States, 1787. 139 
 
 6. To provide for the punishment of counterfeiting the 
 securities and current coin of the United States ; 
 
 7. To estabHsh postofifices and postroads ; 
 
 8. To promote the progress of science and useful arts, 
 by securing, for limited times, to authors and inventors, 
 the exclusive right to their respective writings and dis- 
 coveries ; 
 
 9. To constitute tribunals inferior to the supreme 
 court ; 
 
 10. To define and punish piracies and felonies com- 
 mitted on the high seas, and offenses against the law of 
 nations ; 
 
 11. To declare war, grant letters of marque and re- 
 prisal, and make rules concerning captures on land and 
 water ; 
 
 12. To raise and support armies, but no appropriation 
 of money to that use shall be for a longer term than two 
 years ; 
 
 13. To provide and maintain a navy; 
 
 14. To make rules for the government and regula- 
 tion of the land and naval forces ; 
 
 15. To provide for calling forth the militia to execute 
 the laws of the Union, suppress insurrections, and repel 
 invasions ; 
 
 16. To provide for organizing, arming, and disciplin- 
 ing the militia, and for governing such part of them as 
 may be employed in the service of the United States, 
 reserving to the states, respectively, the appointment of 
 the officers, and the authority of training the militia, 
 according to the discipline prescribed by Congress ; 
 
 17. To exercise exclusive legislation in all cases what- 
 soever, over such district (not exceeding ten miles 
 square) as may, by cession of particular states and the 
 acceptance of Congress, become the seat of government 
 of the United States, and to exercise like authority over 
 
I40 Constitutional History of New York. 
 
 all places purchased by the consent of the legislature of 
 the state, in which the same shall be, for the erection of 
 forts, magazines, arsenals, dockyards, and other need- 
 ful buildings ; and 
 
 1 8. To make all laws which shall be necessary and 
 proper for carrying into execution the foregoing powers, 
 and all other powers vested by this Constitution in the 
 government of the United States, or in any department 
 or officer thereof. 
 
 Section 9. 
 
 1. [Slave trade.] — The migration or importation 
 of such persons as any of the states now existing shall 
 think proper to admit, shall not be prohibited by the 
 Congress prior to the year one thousand eight hundred 
 and eight ; but a tax or duty may be imposed on such im- 
 portation, not exceeding ten dollars for each person. 
 
 2. [Habeas corpus.] — The privilege of the writ of 
 habeas corpus shall not be suspended, unless when, in 
 cases of rebellion or invasion, the public safety may 
 require it. 
 
 3. [Ex post facto law.] — No bill of attainder or 
 ex post facto law shall be passed. 
 
 4. [Direct taxes.] — No capitation or other direct 
 tax shall be laid, unless in proportion to the census or 
 enumeration hereinbefore directed to be taken. 
 
 5. [State exports.] — No tax or duty shall be laid 
 on articles exported from any state. No preference 
 shall be given by any regulation of commerce or revenue 
 to the ports of one state over those of another ; nor shall 
 vessels bound to or from one state be obliged to enter, 
 clear, or pay duties in another. 
 
 6. [Appropriations; statement and account.] — No 
 money shall be drawn from the treasury, but in conse- 
 quence of appropriations made by law; and a regular 
 
The Constitution of the United Stales, i^Bj. 141 
 
 statement and account of the receipts and expenditures 
 of all public money shall be published from time to time. 
 7. [Titles of nobility and presents from foreign 
 state.] — No title of nobility shall be granted by the 
 United States ; and no person holding any office of pi-ofit 
 or trust under them shall, without the consent of the 
 Congress, accept any present, emolument, office, or title 
 of any kind whatever, from any king, prince, or foreign 
 state. 
 
 Section 10. 
 
 1. [State not to exercise certain powers.] — No 
 
 state shall enter into any treaty, alliance, or confedera- 
 tion; grant letters of marque and reprisal; coin money; 
 emit bills of credit; make anything but gold and silver 
 coin a tender in payment of debts; pass any bill of at- 
 tainder, ex post facto law, or law impairing the obligation 
 of contracts ; or grant any title of nobility. 
 
 2. [Congress may authorize exercise of certain 
 powers by states.] — No state shall, without the con- 
 sent of the Congress, lay any imposts, or duties on im- 
 ports or exports, except what may be absolutely neces- 
 sary for executing its inspection laws ; and the net prod- 
 uce of all duties and imposts laid by any state on 
 imports or exports shall be for the use of the treas- 
 ury of the United States ; and all such laws shall be sub- 
 ject to the revision and control of the Congress. No 
 state shall, without the consent of Congress, lay any 
 duty of tonnage, keep troops, or ships of war in time of 
 peace, enter into any agreement or compact with another 
 state or with a foreign power, or engage in war, unless 
 actually invaded or in such imminent danger as will not 
 admit of delay. 
 
142 Constitutional History of New York. 
 
 ARTICLE II. 
 Section i. 
 
 1. [President and Vice President.] — The executive 
 power shall be vested in a President of the United States 
 of America. He shall hold his office during the term 
 of four years, and, together with the Vice President, 
 chosen for the same term, be elected as follows : 
 
 2. [Election.] — Each state shall appoint, in such 
 manner as the legislature thereof may direct, a number 
 of electors equal to the whole number of senators and 
 representatives to which the state may be entitled in the 
 Congress; but no senator or representative, or person 
 holding an office of trust or profit under the United States 
 shall be appointed an elector. 
 
 3. [Election of President and Vice President.] — 
 The electors shall meet in their respective states and vote 
 by ballot for two persons, of whom one, at least, shall 
 not be an inhabitant of the same state with themselves. 
 And they shall make a list of all the persons voted for, 
 and of the number of votes for each, which list they shall 
 sign and certify and transmit sealed to the seat of the 
 government of the United States, directed to the presi- 
 dent of the Senate. The president of the Senate shall, 
 in the presence of the Senate and House of Represent- 
 atives, open all the certificates, and the votes shall then 
 be counted. The person having the greatest number of 
 votes shall be the President, if such number be a ma- 
 jority of the whole number of electors appointed; and 
 if there be more than one who have such majority, and 
 have an equal number of votes, then the House of Rep- 
 resentatives shall immediately choose, by ballot, one of 
 them for President; and if no person have a majority, 
 then from the five highest on the list, the said House shall, 
 in like manner, choose the President. But in choosing 
 
The Constitution of the United States, 1787. 143 
 
 the President the votes shall be taken by states, the rep- 
 resentation from each state having one vote; a quorum 
 for this purpose shall consist of a member or members 
 from two thirds of the states, and a majority of all the 
 states shall be necessary to a choice. In every case, after 
 the choice of the President, the person having the great- 
 est number of votes of the electors shall be the Vice 
 President. But if there should remain two or more who 
 have equal votes, the Senate shall choose from them, by 
 ballot, the Vice President. 
 
 4. [Time of choosing electors.] — The Congress 
 may determine the time of choosing the electors, and the 
 day on which they shall give their votes, which day 
 shall be the same throughout the United States. 
 
 5. [Qualifications of President.] — No person, ex- 
 cept a natural born citizen, or a citizen of the United 
 States at the time of the adoption of this Constitution, 
 shall be eligible to the office of President; neither shall 
 any person be eligible to that office who shall not have 
 attained to the age of thirty-five years, and been fourteen 
 years a resident within the United States. 
 
 6. [Vice President to serve in case of vacancy.] — 
 In case of the removal of the President from office, or 
 of his death, resignation, or inability to discharge the 
 powers and duties of the said office, the same shall de- 
 volve on the Vice President; and the Congress may, by 
 law, provide for the case of removal, death, resignation, 
 or inability, both of the President and Vice President, 
 declaring what officer shall then act as President; and 
 such officer shall act accordingly until the disability be 
 removed, or a President shall be elected. 
 
 7. [Compensation.] — The President shall, at stated 
 times, receive for his services a compensation which shall 
 neither be increased nor diminished during the period 
 for which he shall have been elected; and he shall not 
 
144 Constitutional History of New York. 
 
 receive, within that period, any other emolument from 
 the United States, or any of them. 
 
 8. [Oath of Office.]— Before he enter on the execu- 
 tion of his office, he shall take the following oath or af- 
 firmation : 
 
 "I do solemnly swear (or affirm) that 1 will faith- 
 fully execute the office of President of the United States, 
 and will, to the best of my ability, preserve, protect, and 
 defend the Constitution of the United States." 
 
 Section 2. 
 
 1. [President's general powers.] — The President 
 shall be commander-in-chief of the Army and Navy of 
 the United States, and the militia of the several states, 
 when called into the actual service of the United States ; 
 he may require the opinion in writing of the principal 
 officer in each of the executive departments, upon any 
 subject relating to the duties of their respective offices; 
 and he shall have power to grant reprieves and pardons 
 for offenses against the United States, except in cases 
 of impeachment. 
 
 2. [Treaties; nominations.] — He shall have power, 
 by and with the advice and consent of the Senate, to 
 make treaties, provided two thirds of the senators pres- 
 ent concur; and he shall nominate, and, by and with 
 the advice and consent of the Senate, shall appoint am- 
 bassadors, other public ministers, and consuls, judges 
 of the supreme court, and all other officers of the 
 United States whose appointments are not herein other- 
 wise provided for, and which shall be established by 
 law. But the Congress may, by law, vest the appoint- 
 ment of'such inferior officers as they think proper in the 
 President alone, in the courts of law, or in the heads of 
 departments. 
 
 3. [President to fill vacancies.] — The President 
 
The Constitution of the United States, 1787. 145 
 
 shall have power to fill up all vacancies that may happen 
 during the recess of the Senate, by granting commis- 
 sions, which shall expire at the end of their next session. 
 
 Section 3. 
 
 I. [President's general duties.] — He shall, from 
 time to time, give to the Congress information of the 
 state of the Union, and recommend to their consideration 
 such measures as he shall judge necessary and expedient. 
 He may, on extraordinary occasions, convene both houses 
 or either of them ; and in case of disagreement between 
 them with respect to the time of adjournment, he may 
 adjourn them to such time as he shall think proper; he 
 shall receive ambassadors and other public ministers; he 
 shall take care that the laws be faithfully executed ; and 
 shall commission all the officers of the United States. 
 
 Section 4. 
 
 I. [Removal on impeachment.] — The President, 
 Vice President, and all civil officers of the United States 
 shall be removed from office on impeachment for and 
 conviction of treason, bribery, or other high crimes and 
 misdemeanors. 
 
 ARTICLE III. 
 Section i. 
 
 I. [Judiciary; tenure; compensation.] — The judi- 
 cial power of the United States shall be vested in one 
 supreme court, and in such inferior courts as the Con- 
 gress may, from time to time, ordain and establish. 
 
 The judges, both of the supreme and inferior courts, 
 shall hold their offices during good behavior; and shall, 
 at stated times, receive for their services a compensation, 
 Vol. I. Const. Hist.— 10. 
 
146 Constitutional History of New York. 
 
 which shall not be diminished during their continuance 
 in office. 
 
 Section 2. 
 
 1. [Jurisdiction.] — The judicial power shall extend 
 to all cases in law and equity, arising under this Con- 
 stitution, the laws of the United States, and treaties 
 made;, or which shall be made under their authority; to 
 all cases affecting ambassadors or other public ministers, 
 and consuls ; to all cases of admiralty and maritime juris- 
 diction ; to controversies to which the United States shall 
 be a party ; to controversies between two or more states ; 
 between a state and citizens of another state; between 
 citizens of different states; between citizens of the same 
 state, claiming lands under grants of different states ; and 
 between a state, or the citizens thereof, and foreign states, 
 citizens or subjects. 
 
 2. [Supreme court.] — In all cases affecting ambas- 
 sadors, other public ministers, and consuls, and those in 
 which a state shall be a party, the Supreme Court shall 
 have original jurisdiction. In all the other cases before 
 mentioned, the Supreme Court shall have appellate juris- 
 diction, both as to law and fact, with such exceptions, 
 and under such regulations, as the Congress shall make. 
 
 3. [Jury trial regulated.] — The trial of all crimes, 
 except in cases of impeachment, shall be by jury; and 
 such trials shall be held in the state where the said crimes 
 shall have been committed; but when not committed 
 within any state the trial shall be at such place or places 
 as the Congress may by law have directed. 
 
 . Section 3. 
 
 I. [Treason.] — Treason against the United States 
 shall consist only in levying war against them, or in 
 adhering to their enemies, giving them aid and comfort. 
 
The Constitution of the United States, 178'^. 147 
 
 No person shall be convicted of treason unless on the 
 testimony of two witnesses to the same overt act, or on 
 confession in open court. 
 
 2. [Punishment of treason.] — The Congress shall 
 have power to declare the punishment of treason, but 
 no attainder of treason shall work corruption of blood or 
 forfeiture, except during the life of the person attainted. 
 
 ARTICLE IV. 
 Section i. 
 
 I. [Faith and credit among states.] — Full faith 
 and credit shall be given in each state to the public acts, 
 records, and judicial proceedings of every other state. 
 And the Congress may, by general laws, prescribe the 
 manner in which such acts, records, and proceedings 
 shall be proved and the effect thereof. 
 
 Section 2. 
 
 1. [Privileges and immimities of citizens.] — The 
 citizens of each state shall be entitled to all privileges 
 and immunities of citizens in the several states. 
 
 2. [Fugitives from justice.] — A person charged in 
 any state, with treason, felony, or other crime, who shall 
 flee from justice and be found in another state, shall, on 
 demand of the executive authority of the state from 
 which he fled, be delivered up, to be removed to the state 
 having jurisdiction of the crime. 
 
 3. [Fugitives from labor.] — No person held to 
 service or labor in one state, under the laws thereof, 
 escaping into another, shall, in consequence of any law 
 or regulation therein, be discharged from such service 
 or labor, but shall be delivered up, on claim of the party 
 to whom such service or labor may be due. 
 
148 Constitutional History of New York. 
 
 Section 3. 
 
 1. [New states.] — New states may be admitted by 
 the Congress into this Union, but no new state shall be 
 fornied or erected within the jurisdiction of any other 
 state, nor any state be formed by the jtmction of two or 
 more states or parts of states, without the consent of the 
 legislatures of the states concerned as well as of the 
 Congress. 
 
 2. [Territories.] — The Congress shall have power 
 to dispose of and make all needful rules and regulations 
 respecting the territory or other property belonging to 
 the United States ; and nothing in this Constitution shall 
 be so construed as to prejudice any claims of the United 
 States, or of any particular state. 
 
 Section 4. 
 I. [Republican form of government; protection of 
 states.] — The United States shall guarantee to every 
 state in this Union a republican form of government, and 
 shall protect each of them against invasion ; and, on ap- 
 plication of the legislature, or of the Executive (when 
 the legislature cannot be convened), against domestic 
 violence. 
 
 ARTICLE V. 
 
 I. [Amendments.] — The Congress, whenever two 
 thirds of both houses shall deem it necessary, shall pro- 
 pose amendments to this Constitution; or, on the appli- 
 cation of the legislatures of two thirds of the several 
 states, shall call a convention for proposing amendments, 
 which, in either case, shall be valid to all intents and 
 purposes, as part of this Constitution, when ratified by 
 the legislatures of three fourths of the several , states, or 
 by conventions in three fourths thereof, as the one or the 
 other mode of ratification may be proposed by the Con- 
 gress ; provided that no amendment which may be made 
 
The Constitution of the United States, 1787. 149 
 
 prior to the year one thousand eight hundred and eight 
 shall in any manner affect the first and fourth clauses in 
 the ninth section of the first article; and that no state, 
 without its consent, shall be deprived of its equal suffrage 
 in the Senate. 
 
 ARTICLE VI. 
 
 1. [Debts under the confederation.] — All debts 
 contracted and engagements entered into before the 
 adoption of this Constitution shall be as valid against 
 the United States, under this Constitution, as under 
 the confederation. 
 
 2. [Supreme law.] — This Constitution and the 
 laws of the United States, which shall be made in pur- 
 suance thereof, and all treaties made, or which shall be 
 made, under the authority of the United States, shall be 
 the supreme law of the land; and the judges in every 
 state shall be bound thereby, anything in the Constitution 
 or laws of any state to the contrary notwithstanding. 
 
 3. [Oath of office ; no religious test.] — The senators 
 and representatives before mentioned, and the members 
 of the several state legislatures, and all executive and 
 judicial officers, both of the United States and of the 
 several states, shall be bound by oath or affirmation to 
 support this Constitution ; but no religious test shall ever 
 be required as a qualification to any office or public trust 
 under the United States. 
 
 ARTICLE VII. 
 I. [Ratification.] — The ratification of the conven- 
 tions of nine states shall be sufficient for the establish- 
 ment of this Constitution between the states so ratifying 
 the same. 
 
 Done in convention, by the unanimous consent of 
 the states present, the seventeenth day of Sep- 
 tember, in the year of our Lord one thousand 
 
I50 
 
 Constitutional History of New York. 
 
 seven hundred and eighty-seven, and of the 
 independence of the United States of America 
 the twelfth. In witness whereof, we have here- 
 unto subscribed our names. 
 
 GEORGE WASHINGTON, 
 President, and Deputy from Virginia. 
 
 New Hampshire. 
 John Langdon, 
 Nicholas Gilman. 
 
 Massachusetts. 
 Nathaniel Gorham, 
 Rufus King. 
 
 Connecticut. 
 Wm. Saml. Johnson, 
 Roger Sherman. 
 
 New York. 
 Alexander Hamilton. 
 
 New Jersey. 
 Wil. Livingston, 
 David Brearley, 
 Wm. Paterson, 
 Jona. Daj^on. 
 
 Pennsylvania. 
 B. Franklin, 
 Thomas Miflin, 
 Robt. Morris, 
 Geo. Clymer, 
 Thos. Fitzsimmons, 
 Jared Ingersol, 
 James Wilson, 
 Gouv. Morris. 
 
 Attest : 
 
 Delaware. 
 Geo. Read, 
 
 Gunning Bedford, Jr., 
 John Dickinson, 
 Richard Basset, 
 Jaco. Broom. 
 
 Maryland. 
 James McHenry, 
 Dan. of St. Thos. Jenifer, 
 Danl. Carroll. 
 
 Virginia. 
 John Blair, 
 James Madison, Jr. 
 
 North Carolina. 
 Wm. Blount, 
 Rich'd Dobbs Spaight, 
 Hu. Williamson. 
 
 South Carolina. 
 J. Rutledge, 
 
 Charles Cotesworth Pinckney, 
 Charles Pinckney, 
 Pierce Butler. 
 
 Georgia. 
 
 William Few, 
 Abr. Baldwin. 
 
 William Jackson, Secretary. 
 
Ame^ndments to Federal Constitution. 151 
 
 AMENDMENTS TO FEDERAL CONSTITUTION. 
 
 There were wide differences of opinion concerning the 
 new Constitution, and in many quarters its adoption was 
 vigorously opposed. Several states ratified it with the 
 express understanding that amendments should be im- 
 mediately proposed by Congress to cui-e defects and 
 supply omissions which were deemed vital to the success 
 of the new government about to be established. In many 
 cases the conventions proposed specific amendments, and 
 instructed the representatives from such states in Con- 
 gress to endeavor to procure their submission to the 
 states for their consideration. So many states joined in 
 this movement that its success, so far as Congress was 
 concerned, was practically assured. The first Congress 
 assembled on the 4th of March, 1789, and soon after- 
 wards began the consideration of propositions to amend 
 the Constitution. The subject was considered with great 
 care, not only as to the svibstance of the amendments, 
 but also as to their form and language. The result was 
 a series of amendments, constituting, in substance, a 
 national Bill of Rights, and which will long stand as 
 models of constitutional expression. 
 
 On the 25th of September, 1789, Congress passed a 
 resolution requesting the President to submit to the 
 executives of the several states twelve amendments to 
 the Constitution. All were ratified except two; one of 
 these provided that "after the first enumeration, required 
 by the first article of the Constitution, there shall be one 
 representative for every 30,000, until the number shall 
 amount to 100; after which, the proportion shall be so 
 regulated by Congress that there shall be not less than 
 100 representatives, nor less than one representative for 
 every 40,000 persons, until the number of representatives 
 
152 Constitutional History of New York. 
 
 shall amount to 200; after which, the proportion shall 
 be so regulated by Congress that there shall not be less 
 than 200 representatives, nor more than one representa- 
 tive for every 50,000 persons;" and the other, that "no 
 law varying the compensation for the services of the 
 senators and representatives shall take efifect until an 
 election of representatives shall have intervened." 
 
 February 27, 1790, the New York legislature ratified 
 eleven of the amendments, including the first, relative to 
 apportionment in the House of Representatives, but re- 
 jected the second, relating to the compensation of mem- 
 bers of Congress. Virginia ratified the amendments on 
 the 15th of December, 1791. This was the eleventh 
 state, and made the three fourths required by the Con- 
 stitution. The ratification was therefore complete, and 
 the ten amendments were in effect from that date. 
 
 The following is the resolution proposing these amend- 
 ments : 
 
 CONGRESS OF THE UNITED STATES. 
 
 Begun and held at the city of New York on Wednes- 
 day, the 4th of March, 1789. 
 
 The convention of a number of states having, at the 
 time of their adopting the Constitution, expressed a 
 desire, in order to prevent misconstruction or abuse of 
 its powers, that further declaratory and restrictive clauses 
 should be added ; and, as extending the ground of public 
 confidence in the government, will best insure the benefi- 
 cent ends of its-institution : 
 
 Resolved, By the Senate and House of Representatives 
 of the United States of America in Congress assembled, 
 two thirds of both houses concurring, that the following 
 articles be proposed to the legislatures of the several 
 states as amendments to the Constitution of the United 
 States; all or any of which articles, when ratified by 
 
Amendments to Federal Constitution. 153 
 
 three fourths of the said legislatures, to be valid to all 
 intents and purposes, as part of the said Constitution, 
 namely : 
 
 ARTICLE I. 
 
 I. [Religious toleration; speech and press to be 
 free; right of petition.] — Congress shall make no law 
 respecting an establishment of religion, or prohibiting 
 the free exercise thereof; or abridging the freedom of 
 speech, or of the press; or the right of the people 
 peaceably to assemble, and to petition the government 
 for a redress of grievances. 
 
 ARTICLE II. 
 
 I. [People may keep arms.] — A well-regulated 
 militia being necessary to the security of a free state, 
 the right of the people to keep and bear arms shall not 
 be infringed. 
 
 ARTICLE III. 
 
 I. [Quartering of soldiers limited.] — No soldier 
 shall, in time of peace, be quartered in any house with- 
 out the consent of the owner, nor in time of war, but in 
 a manner to be prescribed by law. 
 
 ARTICLE IV. 
 
 I. [Unreasonable searches and seizures.] — The 
 right of the people to be secure in their persons, 
 houses, papers, and effects against unreasonable 
 searches and seizures, shall not be violated; and no 
 warrants shall issue but upon probable cause, sup- 
 ported by oath or affirmation, and particularly de- 
 scribing the place to be searched and the persons or 
 things to be seized. 
 
154 Constitutional History of New York. 
 
 ARTICLE V. 
 
 I. [Indictment; twice in jeopardy; personal and 
 property rights.] — No person shall be held to answer 
 for a capital or otherwise infamous crime, unless on a 
 presentment or indictment of a grand jury, except in 
 cases arising in the land or naval forces, or in the militia 
 when in actual service in time of war or public danger; 
 nor shall any person be subject for the same offense to 
 be twice put in jeopardy of life or limb; nor shall be 
 compelled in any criminal case to be a witness against 
 himself; nor be deprived of life, liberty, or property, 
 without due process of law ; nor shall private property be 
 taken for public use without just compensation. 
 
 ARTICLE VI. 
 
 I. [Accused entitled to speedy and impartial trial.] 
 
 — In all criminal prosecutions, the accused shall enjoy 
 the right to a speedy and public trial by an impartial 
 jury of the state and district wherein the crime shall have 
 been committed, which district shall have been previously 
 ascertained by law; and to be informed of the nature 
 and cause of the accusation; to be confronted with the 
 \A'itnesses against him; to have compulsory process for 
 obtaining witnesses in his favor; and to have the assist- 
 ance of counsel for his defense. 
 
 ARTICLE VII. 
 
 I. [Trial by jury preserved.] — In suits at common 
 law where the value in controversy shall exceed twenty 
 dollars, the right of trial by jury shall be preserved; and 
 no fact tried by a jury shall be otherwise reexamined in 
 any court of the United States, than according to the 
 rules of the common law. 
 
Amendments to Federal Constitution. 155 
 
 ARTICLE VIII. 
 
 I. [Bail, fines, and punishments to be reasonable.] 
 
 — Excessive bail shall not be required, nor excessive 
 fines imposed, nor cruel and unusual punishments in- 
 flicted. 
 
 ARTICLE IX. 
 
 I. [Rights reserved to people.] — Th* enumeration, 
 in the Constitution, of certain rights shall not be con- 
 strued to deny or disparage others retained by the people. 
 
 ARTICLE X. 
 
 I. [States reserve certain powers.] — The powers 
 not delegated to the United States by the Constitution, 
 nor prohibited by it to the states, are reserved to the 
 states, respectively, or to the people. 
 
 ARTICLE XI. 
 
 I. [Judicial power limited.] — The judicial power of 
 the United States shall not be construed to extend to 
 any suit in law or equity commenced or prosecuted 
 against one of the United States by citizens of another 
 state, or by citizens or subjects of any foreign state. 
 
 [This amendment was passed by the Senate in January, and by the 
 House of Representatives in March, 1794, and by joint resolution 
 adopted on the 12th of March, 1794, the President was requested to 
 transmit the amendment to the executives of the several states. 
 New York acted promptly, ratifying the amendment on the 27th of 
 March, 1794, but it seems that some of the other states were slow to 
 act. On the 8th of January, 1798, President John Adams informed 
 Congress that the amendment had been adopted by three fourths of 
 the states, and that it might therefore "be declared to be a part of 
 the Constitution of the United States."] 
 
 ARTICLE XII. 
 
 I. [Election of President and Vice President.] — 
 
 The electors shall meet in their respective states, and 
 
156 Constitutional History of New York. 
 
 vote, by ballot, for President and Vice President, one of 
 whom, at least, shall not be an inhabitant of the same 
 state with themselves; they shall name in their ballots 
 the person voted for as President, and in distinct ballots 
 the person voted for as Vice President; and they shall 
 make distinct lists of all persons voted for as President, 
 and of all persons voted for as Vice President, and of 
 the number of votes for edch, which lists they shall sign 
 and certify, and transmit, sealed, to the seat of the gov- 
 ernment of the United States, directed to the president 
 of the senate; the president of the Senate shall, in the 
 presence of the Senate and House of Representatives, 
 open all certificates, and the votes shall then be counted ; 
 the person having the greatest number of votes for 
 President shall be the President, if such number be a 
 majority of the whole number of electors appointed; 
 and if no person have such majority, then from the 
 persons having the highest numbers, not exceeding three, 
 on the list of those voted for as President, the House of 
 Representatives shall choose, immediately by ballot, the 
 President. But in choosing the President, the votes shall 
 be taken by states, the representation from each state 
 having one vote ; a quorum for this purpose shall consist 
 of a member or members from two thirds of the states, 
 and a majority of all the states shall be necessary to a 
 choice. And if the House of Representatives shall not 
 choose a President whenever the right of choice shall 
 devolve upon them, before the fourth day of March next 
 following, then the Vice President shall act as President 
 as in the case of the death or other constitutional dis- 
 ability of the President. The person having the greatest 
 number of votes as Vice President shall be the Vice Presi- 
 dent, if such number be a majority of the whole number 
 of electors appointed, and if no person have a majority, 
 then from the two highest numbers on the list, the Senate 
 
Amendments to Federal Constitution. 157 
 
 shall choose the Vice President ; a quorum for the purpose 
 shall consist of two thirds of the whole number of sena- 
 tors, and a majority of the whole number shall be neces- 
 sary to a choice. But no person constitutionally in- 
 eligible to the office of President shall be eligible to that 
 of Vice President of the United States. 
 
 [Congress on the 12th of December, 1803, requested the President 
 to submit the amendment to the several states, and on the 2Sth of 
 September, 1804, it was declared to have been ratified by the requisite 
 number of states. New York ratified the amendment February 11, 
 1804. 
 
 The original provision relating to the election of President and 
 Vice President will be found in art. 2, § i, subd. 3.] 
 
 ARTICLE XIII. 
 
 1. [Slavery prohibited.] — Neither slavery nor in- 
 voluntary servitude, except as a punishment for crime, 
 whereof the party shall have been duly convicted, shall 
 exist within the United States, or any place subject to 
 their jurisdiction. 
 
 2. [Enforcement.] — Congress shall have power to 
 enforce this article by appropriate legislation. 
 
 [A resolution was adopted by Congress on the ist of February, 
 1865, submitting this amendment to the legislatures of the several 
 states. On the i8th of December, 1865, William H. Seward, Secre- 
 tary of State, certified that the amendment had been ratified by 27 
 out of 36 states, and that, having received the assent of three fourths 
 of all the states, the amendment had "become valid, to all intents 
 and purposes, as a part of the Constitution of the United States." 
 New York ratified the amendment April 22, 1865.] 
 
 ARTICLE XIV. 
 
 I. [Rights of citizens.] — All persons born or nat- 
 uralized in the United States, and subject to the juris- 
 diction thereof, are citizens of the United States and of 
 the state wherein they reside. No state shall make or 
 enforce any law which shall abridge the privileges or 
 
158 Constitutional History of New York. 
 
 immunities of citizens of the United States; nor shall 
 any state deprive any person of life, liberty, or property 
 without due process of law, nor deny to any person with- 
 in its jurisdiction the equal protection of the laws. 
 
 2. [Representation in Congress.] — Representa- 
 tives shall be apportioned among the several states ac- 
 cording to their respective numbers, counting the whole 
 number of persons in each state, excluding Indians not 
 taxed. But when the right to vote at any election for 
 the choice of electors for President and Vice President of 
 the United States, representatives in Congress, the exec- 
 utive and judicial officers of a state, or the members of 
 the legislature thereof, is denied to any of the male in- 
 habitants of such state, being twenty-one years of age 
 and citizens of the United States, or in any way abridged, 
 except for participation in rebellion or other crime, the 
 basis of representation therein shall be reduced in the 
 proportion which the number of such male citizens shall 
 bear to the whole number of male citizens twenty-one 
 years of age in such state. 
 
 3. [Disabilities of persons engaging in rebellion.] — 
 No person shall be a senator or representative in Con- 
 gress, or elector of President and Vice President, or hold 
 any office, civil or military, under the United States, or 
 under any state, who, having previously taken an oath, 
 as a member of Congress, or as an officer of the United 
 States, or as a member of any state legislature, or as an 
 executive or judicial officer of any state, to support the 
 Constitution of the United States, shall have engaged in 
 insurrection or rebellion against the same, or given aid 
 or comfort to the enemies thereof. But Congress may, 
 by a vote of two thirds of each house, remove such dis- 
 ability. 
 
 4. [Public debts confirmed, certain claims not to be 
 paid.] — The validity of the public debt of the United 
 
Amendments to Federal Constitution. 159 
 
 States, authorized by law, including debts incurred for 
 payinent of pensions and bounties for services in sup- 
 pressing insurrection or rebellion, shall not be questioned. 
 But neither the United States nor any state shall assume 
 or pay any debt or obligation incurred in aid of insur- 
 rection or rebellion against the United States, or any 
 claim for the loss or emancipation of any slave, but all 
 such debts, obligations, and claims shall be held illegal 
 and void. 
 
 5. [Enforcement of article.] — The Congress shall 
 have power to enforce, by appropriate legislation, the 
 provisions of this article. 
 
 [A resolution submitting the 14th Amendment to the several states 
 was adopted by Congress on the i6th of June, 1866. On the 21st of 
 July, 1868, Congress adopted a concurrent resolution reciting that 
 the amendment had been ratified by more than three fourths of the 
 states, and directing the Secretary of State to promulgate the amend- 
 ment. On the 28th of July following, the Secretary, Mr. Seward, 
 made a certificate promulgating the amendment, as required by the 
 act of 1818 and the preceding resolution of Congress. A concurrent 
 resolution ratifying the 14th Amendment was passed by the New 
 York senate on the 3d of January, 1867, and by the assembly on the 
 loth. All previous ratifications had been by statute. 
 
 Section 2 of this article, relating to apportionment of representa- 
 tives in Congress, should be read in connection with subd. 3, § 2, of 
 art. I of the Constitution.] 
 
 ARTICLE XV. 
 
 1. [Right of suffrage protected.] — The right of cit- 
 izens of the United States to vote shall not be denied 
 or abridged by the United States or by any state, on 
 account of race, color, or previous condition of servitude. 
 
 2. [Enforcement.] — The Congress shall have power 
 to enforce this article by appropriate legislation. 
 
 [This amendment was submitted to the states by a congressional 
 resolution adopted February 27, 1869. On the 30th of March, 1870, 
 Hamilton Fish, Secretary of State, certified that the amendment had 
 
i6o Constitutional History of New York. 
 
 received the assent of three fourths of all the states, and had there- 
 fore become a part of the Constitution. A concurrent resolution 
 ratifying the amendment was passed by the New York assembly on 
 the 17th of March, 1869, and by the senate on the 14th of April 
 following. 
 
 The action of New York on this amendment presents an interest- 
 ing item of history, and shows the severe political tension which 
 existed during the period immediately after the close of the Civil 
 War. This subject is noted in the chapter on the Convention of 
 1867, in connection with its discussions concerning the status of 
 colored voters. 
 
 The 14th Amendment, as stated in the preceding note, was ratified 
 by the legislature of 1867. The Republicans had a large majority in 
 both branches of that legislature. In the senate, which was elected 
 in 186s, a few months after the close of the War, there were only 
 S Democrats out of a total of 32 senators. In the assembly of 1867, 
 which was elected in 1866, there were 82 Republicans and 46 Demo- 
 crats. The vote on the resolution ratifying the 14th Amendment 
 was 23 to 3 in the senate, and 71 to 36 in the assembly. The isth 
 Amendment came up for consideration in a legislature in which 
 political representation was much more nearly equal. A marked 
 political change had occurred since the election of 1865. The senate 
 chosen in 1867 had 17 Republicans and 15 Democrats, and it was this 
 senate which, in 1869, ratified the iSth Amendment by a vote of 17 
 to 15. In the assembly of 1869 there were 73 Republicans and SS 
 Democrats, and this assembly ratified the 15th Amendment by ^ vote 
 of 72 to 47. 
 
 The Constitution proposed by the Convention of 1867 was sub- 
 mitted to the people at the general election in 1869. It met the 
 organized, but not unanimous, opposition of the Democratic party, 
 which, in its state platform, had declared against the proposed Con- 
 stitution. This subject is considered at some length in the conclusion 
 to the chapter on the Convention of 1867. It will be remembered 
 that the proposition to continue the property qualifications of colored 
 voters was submitted separately at this election, and was approved 
 by a majority of 32,601 votes. Thus, notwithstanding the ratification 
 of the ISth Amendment by the legislature in the spring of 1869, the 
 people, in November, voted to continue the established policy of the 
 state, which denied equal suffrage to colored persons. The Demo- 
 cratic State Convention, held on the 22d of September, 1869, not only 
 declared against the new state Constitution, but specifically con- 
 demned the 15th Amendment which had already been ratified by 
 New York. The platform asserted that the amendment had been 
 proposed "in a spirit of contempt of the people and of the right of 
 the states to regulate the elective franchise," and was "intended to 
 place the question of suffrage in the hands of the central powers, and 
 by debasing to demoralize the representative system." 
 
Amendments to Federal Constitution. i6i 
 
 As a result of the election of 1869 the political situation in the 
 legislature was reversed. The senate was changed from 17 Republi- 
 cans and IS Democrats to 17 Democrats and IS Republicans, and the 
 assembly was changed from 73 Republicans and SS Democrats to 72 
 Democrats and s6 Republicans. The party which had opposed the 
 iSth Amendment in the preceding legislature being now in control 
 of that body, attempted to rescind the action by which the amend- 
 ment had been adopted. This action was taken promptly. At the 
 opening of the session on the '4th of January, 1870, William M. 
 Tweed introduced in the senate a resolution to rescind the action 
 taken by the legislature of 1869, ratifying the amendment. The 
 preamble to the resolution, after stating such prior action, recited 
 that the amendment had not been ratified by three fourths of the 
 states, and that the state of New York desired to withdraw its 
 consent to such ratification. The resolution thereupon declared that 
 the preceding concurrent resolution ratifying the amendment "be 
 and it hereby is repealed, rescinded, and annulled," and that the 
 legislature "refuses to I'atify the above recited proposed iSth Amend- 
 ment to the Constitution of the United States, and withdraws 
 absolutely any expression of consent heretofore given thereto, or 
 ratification thereof." This resolution was adopted by both branches 
 of the .legislature on the S'h of January, 1870, — in the senate by a 
 vote of 16 to 13, and in the assembly by a vote of 69 to s6. In the 
 certificate promulgating the amendment, Mr. Fish includes New 
 York among the ratifying states. Referring to the action taken by the 
 legislature of 1870, the Secretary says in the certificate that it "ap- 
 pears from an official document on file in this department that the 
 legislature of the state of New York has since passed resolutions 
 claiming to withdraw the said ratification of the said amendment 
 which had been made by the legislature of that state, and of which 
 official notice had been filed in this department." 
 
 According to the certificate the ratification was complete without 
 New York.] 
 
 Vol. I. Const. Hist. — 11. 
 
i6.2 Constitutional History of New York. 
 
 THE FIRST CONSTITUTION OF NEW YORK, 
 
 1777. 
 
 [General NOTE.^-The first Constitution was adopted on the 20th 
 of April, 1777, by a convention of delegates vested with authority to 
 establish a state government. That day thus became the birthday of 
 the state, and it was so declared by the supreme court in Jackson ex 
 dem. Russell v. White (1822) 20 Johns. 313. The Constitution was 
 not submitted to the people for ratification, but took effect immedi- 
 ately upon its adoption by the Convention. A sketch of this Con- 
 stitution and of the convention which framed it will be found in the 
 first volume of this work. This Constitution continued in force until 
 December 31, 1822, when it was superseded by the Constitution 
 framed by the Convention of 1821. The first Constitution was in 
 force forty-five years, but it received little judicial attention. The 
 scarcity of judicial decisions in which the Constitution was con- 
 sidered during this period is chiefly due to the fact that legislative 
 bills were, before they could become laws, subjected to the scrutiny 
 and criticism of the Council of Revision, composed of the governor, 
 the chancellor, and the judges of the supreme court. These high 
 judicial ofiicers having already determined the constitutionality of 
 laws it was hardly worth while afterwards to attack a statute on this 
 ground. This situation doubtless accounts for the scarcity of con- 
 stitutional questions during this part of our judicial history. Some 
 observations have been made in these volumes on the value of this 
 provision in the first Constitution as a means of reducing litigation 
 concerning constitutional questions. 
 
 Judicial decisions relating to provisions which have been continued 
 in the Constitution of 1894 will be found in notes to that instru- 
 ment. A few decisions, which related only or chiefly to provisions 
 in the first Constitution which were afterwards abrogated, are cited 
 in notes to this Constitution.] 
 
 In Convention of the Representatives of the 
 State of New York. 
 
 Kingston, 20th April, 1777. 
 
 Whereas, The many tyrannical and oppressive usur- 
 pations of the King and Parliament of Great Britain, 
 on the rights and Hberties of the people of the American 
 colonies, had reduced them to the necessity of introdu- 
 cing a government by congresses and committees, as tern- 
 
The First Constitution of New York, iJTT- 163 
 
 porary expedients, and to exist no longer than the griev- 
 ances of the people should remain without redress. 
 
 And whereas, The congress of the colony of New 
 York did, on the thirty-first day of May, now last past, 
 resolve as follows, viz.: 
 
 "Whereas the present government of this colony, by 
 congress and committees, was instituted while the former 
 government, under the Crown of Great Britain, existed 
 in full force; and was established for the sole purpose of 
 opposing the usurpation of the British Parliament, and 
 was intended to expire on a reconciliation with Great 
 Britain, which it was then apprehended would soon take 
 place, but is now considered as remote and uncertain. 
 
 "And whereas many and great inconveniences attend 
 the said mode of government by congress and commit- 
 tees, as, of necessity, in many instances, legislative, judi- 
 cial, and executive powers have been vested therein, 
 especially since the dissolution of the former govern- 
 ment by the abdication of the late governor, and the 
 exclusion of this colony from the protection of the King 
 of Great Britain. 
 
 "And whereas the Continental Congress did resolve 
 as followeth, to wit: 
 
 " 'Whereas his Britannic majesty, in conjunction with 
 the lords and commons of Great Britain, has, by a late 
 act of Parliament, excluded the inhabitants of these 
 united colonies from the protection of his crown. And 
 whereas, no answers whatever to the humble petition of 
 the colonies for redress of grievances and reconciliation 
 with Great Britain has been, or is likely to be, given, but 
 the whole force of that kingdom, aided by foreign mer- 
 cenaries, is to be exerted for the destruction of the good 
 people of these colonies. And whereas it appears ab- 
 solutely irreconcilable to reason and good conscience for 
 
164 Constitutional History of New York. 
 
 the people of these colonies now to take the oaths and 
 affirmations necessary for the support of any govern- 
 ment under the crown of Great Britain, and it is neces- 
 sary that the exercise of every kind of authority under 
 the said crown should be totally suppressed, and all the 
 powers of government exerted under the authority of 
 the people of the colonies, for the preservation of inter- 
 nal peace, virtue, and good order, as well as for the 
 defense of our lives, liberties, and properties, against the 
 hostile invasions and cruel depredations of our enemies : 
 
 " 'Therefore, 
 
 " 'Resolved, That it be recommended to the respective 
 assemblies and conventions of the united colonies, where 
 no government sufficient to the exigencies of their affairs 
 has been hitherto established, to adopt such government 
 as shall, in the opinion of the representatives of the 
 people, best conduce to the happiness and safety of their 
 constituents in particular, and America in general.' 
 
 "And whereas doubts have arisen, whether this con- 
 gress are invested with sufficient power and authority to 
 deliberate and determine on so important a subject as 
 the necessity of erecting and constituting a new form of 
 government and internal police, to the exclusion of all 
 foreign jurisdiction, dominion, and control whatever. 
 And whereas it appertains of right solely to the people 
 of this colony to determine the said doubts : There- 
 fore, 
 
 "Resolved, That it be recommended to the electors in 
 the several counties in this colony, by election in the 
 manner and form prescribed for the election of the 
 present congress, either to authorize (in addition to the 
 powers vested in this congress) their present deputies, 
 or others in the stead of their present deputies, or either 
 of them, to take into consideration the necessity and 
 
The First Constitution of Neiv York, IJTJ- 165 
 
 propriety of instituting such new government as in and 
 by said resolution of the continental congress is described 
 and recommended. And if the majority of the counties, 
 by their deputies in provincial congress, shall be of opin- 
 ion that such new government ought to be instituted and 
 established, then to institute and establish such a govern- 
 ment as they shall deem best calculated to secure the 
 rights, liberties, and happiness of the good people of this 
 colony ; and to continue in force until a future peace with 
 Great Britain shall render the same unnecessary ; And, 
 
 "Resolved, That the said elections in the several coun- 
 ties ought to be had on such day, and at such place or 
 places, as by the committee of each county respectively 
 shall be determined. And it is recommended to the said 
 committees to fix such early days for the said elections 
 as that all the deputies to be elected have sufficient time 
 to repair to the city of New York by the second Monday 
 in July next; on which day all the said deputies ought 
 punctually to give their attendance. 
 
 "And whereas the object of the foregoing resolutions 
 is of the utmost importance to the good people of this 
 colony. 
 
 ''Resolved, That it be, and it is hereby earnestly rec- 
 ommended to the committees, freeholders, and other 
 electors in the different counties in this colony, diligently 
 to carry the same into executior^." 
 
 And whereas, The good people of the said colony, in 
 pursuance of the said resolution, and reposing special 
 trust and confidence in the members of this convention, 
 have appointed, authorized, and empowered them for the 
 purposes, and in the manner, and with the powers in and 
 by the said resolve specified, declared, and mentioned. 
 
 And whereas, The delegates of the United American 
 States, in general congress convened, did, on the fourth 
 
i66 Constitutional History of New York. 
 
 day of July now last past, solemnly publish and declare, 
 in the words following, viz.: 
 
 [Here follows the Declaration of Independence, which appears in a 
 separate form in a previous part of this volume.] 
 
 And whereas, This convention, having taken this dec- 
 laration into their most serious consideration, did, on 
 the ninth day of July last past, unanimously resolve 
 that the reasons assigned by the Continental Congress 
 for declaring the united colonies free and independent 
 states are cogent and conclusive; and that, while we la- 
 ment the cruel necessity which has rendered that measure 
 unavoidable, we approve the same, and will, at the risk 
 of our lives and fortunes, join with the other colonies in 
 supporting it. 
 
 By virtue of which several acts, declarations, and pro- 
 ceedings, mentioned and contained in the afore-recited 
 resolves or resolutions of the general congress of the 
 United American States, and of the congresses or con- 
 ventions of this state, all power whatever therein hath 
 reverted to the people thereof, and this convention hath, 
 by their suffrages and free choice, been appointed, and, 
 among other things, authorized to institute and establish 
 such a government as they shall deem best calculated to 
 secure the rights and liberties of the good people of this 
 state, most conducive of the happiness and safety of their 
 constituents in particular, and of America in general : 
 
 I. [People the only source of authority.] — This 
 convention, therefore, in the name and by the authority 
 of the good people of this state, doth ordain, deter- 
 mine, AND DECLARE, That uo authority shall, on any 
 pretense whatever, be exercised over the people or mem- 
 bers of this state, but such as shall be derived from and 
 granted by them. 
 
The First Constitution of New York, 1777. 167 
 
 II. [Legislative power vested in senate and as- 
 sembly.] — This convention doth further, in the name 
 and by the authority of the good people of this state, 
 ORDAIN, DETERMINE, AND DECLARE, That the Supreme 
 legislative power within this state shall be vested in two 
 separate and distinct bodies of men : the one to be called 
 the assembly of the state of New York; the other to be 
 called the senate of the state of New York; who, to- 
 gether, shall form the legislature, and meet once, at least, 
 in every year for the despatch of business. 
 
 [Const. 1821, art. i, § i ; 1846 and 1894, art. 3, § i.] 
 
 III. [Council of Revision.] — And whereas. Laws 
 inconsistent with the spirit of this Constitution, or with 
 the public good, may be hastily and unadvisably passed : 
 Be it ordained. That the governor, for the time being, 
 the chancellor, and the judges of the supreme court, or 
 any two of them, together with the governor, shall be, 
 and hereby are, constituted a council to revise all bills 
 about to be passed into laws by the legislature. And 
 for that purpose shall assemble themselves, from time to 
 time, when the legislature shall be convened ; for which, 
 nevertheless, they shall not receive any salary or con- 
 sideration under any pretense whatever. And that all 
 bills which have passed the senate and assembly shall, 
 before they become laws, be presented to the said council 
 for their revisal and consideration; and if, upon such 
 revision and consideration, it should appear improper to 
 the said council, or a majority of them, that the said bill 
 should become a law of this state, that they return the 
 same, together with their objections thereto in writing, 
 to the senate or house of assembly, in whichsoever the 
 same shall have originated, who shall enter the objec- 
 tions set down by the council, at large, in their minutes, 
 and proceed to reconsider the said bill. But if, after 
 
1 68 Constitutional History of New York. 
 
 such reconsideration, two thirds of the said senate or 
 house of assembly shall, notwithstanding the said ob- 
 jections, agree to pass- the same, it shall, together with 
 the objections, be sent to the other branch of the legis- 
 lature, where it shall also be reconsidered, and, if ap- 
 proved by two thirds of the members present, shall be 
 a law. 
 
 And in order to prevent any unnecessary delays. 
 Be it further ordained, That if any bill shall not 
 be returned by the council within ten days after it shall 
 have been presented, the same shall be a law, unless the 
 legislature shall, by their adjournment, render a return 
 of the said bill within ten days impracticable, in which 
 case the bill shall be returned on the first day of the 
 meeting of the legislature, after the expiration of the 
 said ten days. 
 
 [Council of Revision abolished by Constitution of 1821, and veto 
 power conferred on governor. Const. 1821, art. i, § 12; 1846 and 
 1894, art. 4, § 9] 
 
 IV. [Assembly, how constituted.] — That the as- 
 sembly shall consist of at least seventy members, to be 
 annually chosen in the several counties, in the proportions 
 following, viz.: 
 
 For the city and county of New York Nine. 
 
 The city and county of Albany Ten. 
 
 The county of Dutchess Seven. 
 
 The county of Westchester Six. 
 
 The county of Ulster Six. 
 
 The county of Suffolk Five. 
 
 The county of Queens Four. 
 
 The county of Orange Four. 
 
 The county of Kings Two. 
 
 The county of Richmond Two. 
 
'The First Constitution of New York, J777. 169 
 
 *The county of Tryon Six. 
 
 *The county of Charlotte Four. 
 
 f The county of Cumberland Three. 
 
 f The county of Gloucester Two. 
 
 [See amendment of 1801 ; Const. 1821, art. i, § 2 ; 1846 and 1894, 
 art. 3, § 2.] 
 
 V. [Census; reapportionment of assembly.] — 
 That as soon as the expiration of seven years, subsequent 
 to the termination of the present war, as may be, a census 
 of the electors and inhabitants in this state shall be taken, 
 under the direction of the legislature. And if, on such 
 census, it shall appear that the number of representatives 
 in assembly from the said counties is not justly propor- 
 tioned to the number of electors in' the said counties 
 respectively, that the legislature do adjust and apportion 
 the same by that rule. And further, that once in every 
 seven years, after the taking of the said first census, a 
 just account of the electors resident in each county shall 
 be taken ; and if it shall thereupon appear that the number 
 of electors in any county shall have increased or dimin- 
 ished one or more seventieth parts of the whole number 
 of electors, which, on the said first census, shall be found 
 in this state, the number of representatives for such 
 county shall be increased or diminished accordingly ; that 
 is to say, one representative for every seventieth part, as 
 aforesaid. 
 
 [Am. 1801; Const. 1821, art. i, §§ 6 and 7; 1846 and 1894, art. 3, 
 §§4 and 5. See article on Apportionment, volume 3.] 
 
 VI. [Experiment in elections by ballot.] — And 
 
 WHEREAS, An opinion hath long prevailed among divers 
 
 ♦Names changed, and the territory of which they consisted divided 
 into several counties. 
 tCeded to Vermont. 
 
170 Constitutional History of Nezv York. 
 
 of the good people of this state, that voting at elections 
 by ballot would tend more to preserve the liberty and 
 equal freedom of the people than voting viva voce: to the 
 end, therefore, that a fair experiment be made, which of 
 those two methods of voting is to be preferred : 
 
 Be it ordained. That as soon as may be, after the ter- 
 mination of the present war between the United States of 
 America and Great Britain, an act or acts be passed by 
 the legislature of this state, for causing all elections 
 thereafter to be held in this state for senators and rep- 
 resentatives in assembly, to be by ballot, and directing 
 the manner in which the same shall be conducted. 
 
 And whereas. It is possible that, after all the care of 
 the legislature in framing the said act or acts, certain 
 inconveniences and mischiefs, unforeseen at this day, 
 may be found to attend the said mode of electing by 
 ballot : 
 
 It is further ordained. That if, after a full and fair 
 experiment shall be made of voting by ballot aforesaid, 
 the same shall be found less conducive to the safety or 
 interest of the state than the method of voting viva voce, 
 it shall be lawful and constitutional for the legislature 
 to abolish the same: Provided^ Two thirds of the 
 members present in each house, respectively, shall concur 
 therein. And further, that during the continuance of 
 the present war, and until the legislature of this state 
 shall provide for the election of senators and representa- 
 tives in assembly, by ballot, the said election shall be 
 made viva voce. 
 
 [Const. 1821, art. 2, § 4; 1846 and 1894, art. 2, § 5.] 
 
 VII. [Qualifications of voters.]- — That every male 
 inhabitant of full age, who shall have personally resided 
 within one of the counties of this state for six months 
 immediately preceding the day of election, shall, at such 
 
The First Constitution of New York, ITJT- 171 
 
 election, be entitled to vote for representatives of the 
 said county in assembly; if, during the time aforesaid, he 
 shall have been a freeholder, possessing a freehold of the 
 value of twenty pounds, within the said county, or have 
 rented a tenement therein of the yearly value of forty 
 shillings, and been rated and actually paid taxes to this 
 state: Provided always, That every person who is now 
 a freeman of the city of Albany, or who was made a 
 freeman of the city of New York, on or before the four- 
 teenth day of October, in the year of our Lord one 
 thousand seven hundred and seventy-five, and shall be 
 actually and usually resident in the said cities respect- 
 ively, shall be entitled to vote for representatives in 
 assembly within his said place of residence. 
 
 [Consts. 1821, 1846, and 1894, art. 2, § i.] 
 
 VIII. [Voters' oath of allegiance.] — That every 
 elector, before he is admitted to vote, shall, if required 
 by the returning officer or either of the inspectors, take 
 an oath, or if of the people called Quakers, an affirma- 
 tion, of allegiance to the state. 
 
 [Abrogated by Constitution of 1821.] 
 
 IX. [Powers of assembly.] — That the assembly 
 thus constituted shall choose their own speaker, be judges 
 of their own members, and enjoy the same privileges, 
 and proceed in doing business, in like manner as the 
 assemblies of the colony of New York of right formerly 
 did; and that a majority of the said members shall, from 
 time to time, constitute a house to proceed upon business. 
 
 [Const. 1821, art. i, § 3 J 1846 and 1894, art 3, i 10.] 
 
 X. [Senate, how constituted.] — And this con- 
 vention doth further, in the name and by the authority 
 
172 Constitutional History of New York. 
 
 of the good people of this state, ordain, determine. 
 AND DECLARE, That the senate of the state of New 'York 
 shall consist of twenty-four freeholders, to be chosen out 
 of the body of the freeholders, and that they be chosen 
 by the freeholders of this state possessed of freeholds of 
 the value of one hundred pounds, over and above all 
 debts charged thereon. 
 
 [Am. 1801; Const. 1821, art. i, § 2; 1846 and 1894, art. 3, § 2. 
 Article on Apportionment, in the third volume.] 
 
 XI. [Senators' term and classification.] — That the 
 members of the senate be elected for four years, and 
 immediately after the first election, they be divided by 
 lot into four classes, six in each class, and numbered, 
 one, two, three, four ; and that the seats of the members 
 of the first class shall be vacated at the expiration of the 
 first year; the second class the second year; and so on 
 continually, to the end that the fourth part of the senate, 
 as nearly as possible, may be annually chosen. 
 
 [Am. 1801 ; Const. 1821, art. i, § 5 ; 1846 and 1894, art. 3, § 3.] 
 
 XII. [Senate districts.] — That the election of sen- 
 ators shall be after this manner : that so much of this 
 state as is now parcelled into counties, be divided into 
 four great districts : the southern district to comprehend 
 the city and county of New York, Suffolk, Westchester, 
 Kings, Queens, and Richmond counties; the middle dis- 
 trict to comprehend the counties of Dutchess, Ulster, 
 and Orange ; the western district, the city and county of 
 Albany, and Tryon county; and the eastern district, the 
 counties of Charlotte, Cumberland, and Gloucester. 
 That the senators shall be elected by the freeholders of 
 the said districts, qualified as aforesaid, in the propor- 
 tions following, to wit: in the southern district, nine; 
 in the middle district, six; in the western district, six; 
 
The First Constitution of New York, 1177- I73 
 
 and in the eastern district, three. And be it ordained, 
 That a census shall be taken as soon as may be, after the 
 expiration of seven years from the termination of the 
 present war, under the direction of the legislature; and 
 if, on such census, it shall appear that the number of 
 senators is not justly proportioned to the several dis- 
 tricts, that the legislature adjust the proportion, as near 
 as may be, to the number of freeholders, qualified as 
 aforesaid, in each district. That when the number of 
 electors within any of the said districts shall have in- 
 creased one twenty-fourth part of the whole number of 
 electors which, by the said census, shall be found to be 
 in this state, an additional senator shall be chosen by the 
 electors of such district. That a majority of the num- 
 ber of senators, to be chosen as aforesaid, shall be neces- 
 sary to constitute a senate sufficient to proceed upon 
 business; and that the senate shall, in like manner with 
 the assembly, be the judges of its own members. And 
 BE IT ORDAINED, That it shall be in the power of the 
 future legislatures of this state, for the convenience and 
 advantage of the good people thereof, to divide the same 
 into such further and other counties and districts as shall 
 to them appear necessary. 
 
 [Am. 1801 ; Const. 1821, art. i, § 5 ; 1846 and 1894, art. 3, § 3.] 
 
 XIII. [Rights of citizens.] — And this convention 
 doth further, in the name and by the authority of the 
 good people of this state, ordain, determine, and de- 
 clare. That no member of this state shall be disfran- 
 chised, or deprived of any rights or privileges secured to 
 the subjects of this state by this Constitution, unless by 
 the law of the land, or the judgment of his peers. 
 
 [Magna Charta, chap. 39; Const. 1821, art. 7, § i ; 1846 and 1894, 
 art. I, § I.] 
 
174 Constitutional History of New York. 
 
 XIV. [Limitation of adjournment.] — That neither 
 the assembly nor the senate shall have power to adjourn 
 themselves for any longer time than two days, without 
 the mutual consent of both. 
 
 [Const. 1821, art. I, § 4; 1846 and 1894, art. 3, § II.] 
 
 XV. [Conference of two houses; executive ses- 
 sions.] — That, whenever the assembly and senate dis- 
 agree, a conference shall be held in the presence of both, 
 and be managed by committees, to be by them respect- 
 ively chosen by ballot. That the doors, both of the 
 senate and assembly, shall at all times be kept open to 
 all persons, except when the welfare of the state shall 
 require their debates to be kept secret. And the jour- 
 nals of all their proceedings shall be kept in the manner 
 heretofore accustomed by the general assembly of the 
 colony of New York; and, except such parts as they 
 shall, as aforesaid, respectively determine not to make 
 public, be, from day to day, if the business of the legis- 
 lature will permit, published. 
 
 [Conference provision abrogated by Const. 1821. Remainder of 
 section substantially continued in Const. 1821, art. i, § 4; 1846 and 
 1894, art. 3, § II.] 
 
 XVI. [Limitation of number of members.] — It is, 
 
 nevertheless, provided, that the number of senators shall 
 never exceed one hundred, nor the members of assembly 
 three hundred; but that, whenever the number of sena- 
 tors shall amount to one hundred, or of the assembly to 
 three hundred, then, and in such case, the legislature 
 shall, from time to time, hereafter, by laws for that 
 purpose, apportion and distribute the said one hundred 
 senators and three hundred representatives among the 
 great districts and counties of this state, in proportion 
 
The First Constitution of Nezv York, ly/T. 175 
 
 to the number of their respective electors, so that the 
 representation of the good people of this state, both in 
 the senate and assembly, shall forever remain propor- 
 tionate and adequate. 
 
 [Am. 1801.] 
 
 XVII. [Governor; qualification and term.] — And 
 
 this convention doth further, in the name and by the 
 authority of the good people of this state, ordain, de- 
 termine, AND DECLARE, That the supreme executive 
 power and authority of this state shall be vested in a 
 governor; and that, statedly, once in every three years, 
 and as often as the seat of government shall become 
 A'acant, a wise and discreet freeholder of this state shall 
 be, by ballot, elected governor, by the freeholders of this 
 state, qualified, as before described, to elect senators, 
 which elections shall be always held at the times and 
 places of choosing representatives in assembly for each 
 respective county; and that the person who hath the 
 greatest number of votes within the said state shall be 
 governor thereof. 
 
 [Const. 1821, art. 3, § I ; 1846 and 1894, art. 4, § i.] 
 
 XVIII. [Governor's general powers.] — That the 
 governor shall continue in office three years, and shall, 
 by virtue of his office, be general and commander in 
 chief of all the militia, and admiral of the navy, of this 
 state; that he shall have power to convene the assembly 
 and senate on extraordinary occasions ; to prorogue them 
 from time to time, provided such prorogation shall not 
 exceed sixty days in the space of any one year; and, at 
 his discretion, to grant reprieves and pardons to persons 
 convicted of crimes other than treason or murder, in 
 which he may suspend the execution of the sentence until 
 
176 Constitutional History of New York. 
 
 it shall be reported to the legislature, at their subsequent 
 meeting, and they shall either pardon or direct the execu- 
 tion of the criminal, or grant a further reprieve. 
 
 [Const. 1821, art. 3, § 4; 1846 and 1894, art. 4, §§ 4, s; 1821, art. 
 3, § 5; 1846 and 1894, art. 4, § 5.] 
 
 XIX. [Governor's duties.] — That it shall be the 
 duty of the governor to inform the legislature, at every 
 session, of the condition of the state, so far as may re- 
 spect his department; to recommend such matters to 
 their consideration as shall appear to him to concern its 
 good government, welfare, and prosperity ; to correspond 
 with the Continental Congress, and other states; to 
 transact all necessary business with the officers of gov- 
 ernment, civil and military; to take care that the laws 
 are faithfully executed, to the best of his ability; and to 
 expedite all such measures as may be resolved upon by 
 the legislature. 
 
 [Const. 1821, art. 3, i 4; 1846 and 1894, art. 4, § 4.] 
 
 XX. [Lieutenant governor; qualification and 
 term.] — That a lieutenant governor shall, at every 
 election of a governor, and as often as the lieutenant 
 governor shall die, resign, or be removed from office, 
 be elected in the same manner with the governor, to 
 continue in office until the next election of a governor; 
 and such lieutenant governor shall, by virtue of his office, 
 be president of the senate, and upon an equal division, 
 having a casting vote in their decisions, but not vote on 
 any other occasion. 
 
 And in case of the impeachment of the governor, or 
 his removal from office, death, resignation, or absence 
 from the state, the lieutenant governor shall exercise all 
 the power and authority appertaining to the office of 
 
The First Constitution of New York, 1777. 177 
 
 governor, until another be chosen, or the governor ab- 
 sent or impeached shall return, or be acquitted. Pro- 
 vided. That where the governor shall, with the consent of 
 the legislature, be out of the state, in time of war, at 
 the head of a military force thereof, he shall still con- 
 tinue in his command of all the military force of this 
 state, both by sea and land. 
 
 [Election, Const. 1821, art. 3, § 3; 1846, 1894, art. 4, $ 3; President 
 of Senate, Const. 1821, art. 3, § 7; 1846, 1894, art. 4, § 7; Acting 
 Governor, Const. 1821, art. 3, § 6; 1846, 1894, art. 4, § 6.] 
 
 XXI, [When president of senate to act as govern- 
 or.] — ^That whenever the government shall be adminis- 
 tered by the lieutenant governor, or he shall be unable 
 to attend as president of the senate, the senators shall, 
 have power to elect one of their own members to the 
 office of president of the senate, which he shall exercise 
 pro hoc vice. And if, during such vacancy of the office 
 of governor, the lieutenant governor shall be impeached, 
 displaced, resign, die, or be absent from the state, the 
 president of the senate shall, in like manner as the lieu- 
 tenant governor, administer the government until others 
 shall be elected by the suffrage of the people, at the suc- 
 ceeding election. 
 
 [Const. 1821, art. 3, § 7 ; 1846, 1894, art. 4, I 7.] 
 
 XXII. [State treasurer,] — And this convention 
 doth further, in the name and by the authority of the 
 good people of this state, oedain, determine, and de- 
 clare. That the treasurer of this state shall be appointed 
 by act of the legislature, to originate with the assembly. 
 
 Provided, That he shall not be elected out of either 
 branch of the legislature, 
 
 [Const. 1821, art. 4, § 6; 1846, 1894, art. 5, § i.] 
 Vol. I. Const. Hist.— 12. 
 
178 Constitutional History of New York. 
 
 XXIII. [Officers, how appointed.]— That all of- 
 ficers other than those who, by this Constitution, are 
 directed to be otherwise appointed, shall be appointed 
 in the manner following, to wit: The assembly shall, 
 once in every year, openly nominate and appoint one of 
 the senators from each great district, which senators shall 
 form a council for the appointment of the said officers, of 
 which the governor for the time being, or the lieutenant 
 governor, or the president of the senate (when they 
 shall respectively administer the government), shall be 
 president, and have a casting voice, but no other vote, 
 and, with the advice and consent of the said council, 
 shall appoint all of the said officers ; and that a majority 
 of the said council be a quorum ; and further. The said 
 senators shall not be eligible to the said council for two 
 years successively. 
 
 [Construed in § S, amendments of 1801. Abrogated and council 
 abolished by Const, of 1821. 
 
 The general powers of the council were defined in People v. Foot 
 (1821), 19 Johns. 58, where it was held that the council might ap- 
 point and remove officers at pleasure, and the legislature could not 
 prescribe to the council the mode or manner of executing the con- 
 stitutional trust reposed in them, and could not "inhibit the council 
 from accepting a resignation and appointing a successor," nor require 
 the council to inquire into the official conduct of an officer before 
 accepting his resignation. The discretion vested in the council was 
 unlimited, and could not be controlled by ihe legislature.] 
 
 XXIV. [Officers' commissions; terms of judicial 
 officers.] — That all military officers be appointed dur- 
 ing pleasure; that all commissioned officers, civil and 
 military, be commissioned by the governor; and that 
 the chancellor, the judges of the supreme court, and first 
 judge of the county court in every county, hold their 
 offices during good behavior, or until they shall have re- 
 spectively attained the age of sixty years. 
 
 [Militia, Const. 1821, art. 4; 1846, 1894, art. 11. Judicial Officers, 
 Const. 1821, art. 5, § 3; 1846, 1894, art. 6, § 4.] 
 
The First Constitution of New York, IJTJ. 179 
 
 XXV. [When judge not to hold other office.] — 
 
 That the chancellor and judges of the supreme court 
 shall not, at the same time, hold any other office, except- 
 ing that of delegate to the general Congress, upon special 
 occasions; and that the first judges of the county courts 
 in the several counties shall not, at the same time, hold 
 any other office, excepting that of senator, or delegate 
 to the general Congress. But if the chancellor or either 
 of the said judges be elected or appointed to any other 
 office, excepting as is before excepted, it shall be at his 
 option in which to serve. 
 
 [Const. 1821, art. S, § 7; 1846, art. 6, § 8; 1894, art. 6, § 10.] 
 
 XXVI. [Sheriffs and coroners.] — That sheriffs 
 and coroners be annually appointed; and that no person 
 shall be capable of holding either of the said offices more 
 than four years successively; nor the sheriff of holding 
 any other office at the same time. 
 
 [Sheriffs, Const. 1821, art. 4, § 8; 1846, 1894, art. 10, § i. Coroners, 
 Const. 1821, art. 4, § 11; 1846, art. 10, § i. Coroners omitted from 
 Const. 1894.] 
 
 XXVII. [Registers, clerks, marshals, attorneys.] 
 
 — And be it further ordained. That the register and 
 clerks in chancery be appointed by the chancellor; the 
 clerks of the supreme court, by the judges of the said 
 court; the clerk of the court of probates, by the judge 
 of the said court; and the register and marshal of the 
 court of admiralty, by the judge of the admiralty. The 
 said marshal, registers, and clerks to continue in office 
 during the pleasure of those by whom they are to be 
 appointed as aforesaid. 
 
 And all attorneys, solicitors, and counsellors at law, 
 hereafter to be appointed, be appointed by the court, 
 and licensed by the first judge of the court in which they 
 
i8o Constitutional History of New York. 
 
 shall respectively plead or practise; and be regulated by 
 the rules and orders of the said courts. 
 
 [Court Clerks, Const. 1821, art. 4 § 9; 1846, art. 6, § 19. Judiciary 
 Article, i86g, art. 6, § 20; 1894, art. 6, § 19. Attorneys, Const. 1846, 
 art. 6, § 8.] 
 
 XXVIII. [Duration of office.] — ^And be it further 
 ORDAINED, That where, by this Constitution, the dura- 
 tion of any office shall not be ascertained, such office 
 shall be construed to be held during the pleasure of the 
 Council of Appointment: Provided, That new commis- 
 sions sh^ll be issued to judges of the county courts (other 
 than to the first judge), and to justices of the peace, 
 once at the least in every three years. 
 
 [Const. 1821, art. 4, § 16; 1846, 1894, art. 10, § 3.] 
 
 XXIX. [Certain town and county officers.] — The 
 
 town clerks, supervisors, assessors, constables, and col- 
 lectors, and all other officers, heretofore eligible by the 
 people, shall alwa,ys continue to be so eligible, in the 
 manner directed by the present or future acts of legis- 
 lature. 
 
 That loan officers, county treasurers, and clerks of the 
 supervisors, continue to be appointed in the manner 
 directed by the present or future acts of the legislature. 
 
 [Const. 1821, art. 4, § 15; 1846, 1894, art. 10, § 2.] 
 
 XXX. [Congressional delegates, how chosen.] — 
 
 That delegates to represent this state in the general Con- 
 gress of the United States of America be annually ap- 
 pointed, as follows, to wit: The senate and assembly 
 shall each openly nominate as many persons as shall be 
 equal to the whole number of delegates to be appointed ; 
 after which nomination they shall meet together, and 
 
The First Constitution of New York, 1777. 181 
 
 those persons named in both Hsts shall be delegates ; and 
 out of those persons whose names are not on both lists, 
 one half shall be chosen by the joint ballot of the senators 
 and members of assembly, so met together as aforesaid. 
 
 [Abrogated by Const. 1821.] 
 
 XXXI. [Enacting clause; writs in name of people.] 
 — That the style of all laws shall be as follows, to wit : 
 "Be it enacted by the people of the state of New York, 
 represented in senate and assembly," and that all writs 
 and other proceedings shall run in the name of the people 
 of the state of New York, and be tested in the name of 
 the chancellor, or chief judge of the court from whence 
 they shall issue. 
 
 [Enacting clause omitted from Const. 1821 ; Const. 1846, art. 3, 
 § 14; 1894, art. 3, § 14. Remainder of section abrogated by Const, 
 of 1821. 
 
 The Supreme Court in Dickenson v. Rogers (1822), 19 Johns. 279, 
 said that the provision in this section requiring writs to be "tested 
 in the name of the chancellor or chief judge of the court from 
 whence they shall issue" did not apply to a criminal warrant issued 
 by a justice of the peace, and that a warrant issued in the name of 
 a justice was valid.] 
 
 XXXII. [Court of impeachments; court of er- 
 rors.] — And this convention doth further, in the name 
 and by the authority of the good people of this state, 
 ORDAIN, DETERMINE, AND DECLARE, That a court shall be 
 instituted for the trial of impeachments and the correc- 
 tion of errors, under the regulations which shall be estab- 
 lished by the legislature, and to consist of the president 
 of the senate for the time being, and the senators, 
 chancellor, and judges of the supreme court, or the major 
 part of them; except that when an impeachment shall 
 be prosecuted against the chancellor, or either of the 
 judges of the supreme court, the person so impeached 
 
i82 Constitutional History of New York. 
 
 shall be suspended from exercising his office, until his 
 acquittal; and in like manner, when an appeal from a 
 decree in equity shall be heard, the chancellor shall inform 
 the court of the reasons of his decree, but shall not have 
 a voice in the final sentence. And if the cause to be de- 
 termined shall be brought up by writ of error, on a ques- 
 tion of law, on a judgment in the supreme court, the 
 judges of the court shall assign the reasons of such their 
 judgment, but shall not have a voice for its affirmance 
 or reversal. 
 
 [Const. 1821, art. s, § i. Court for correction of errors abolished 
 in 1846. Court of impeachments, Const. 1846, art. 6, § i; 1894, art. 
 6, § la- 
 in Clason V. Shot-well (1814), 12 Johns. 31, the term "judgment" 
 as used in this section was defined as "every final or definitive sen- 
 tence or decision of the supreme court, by which the merits of a 
 cause are settled or determined, although such sentence is not tech- 
 nically a judgment, or the proceedings are not capable of being 
 enrolled so as to constitute what is technically called a record;" but 
 it did not include interlocutory orders. 
 
 The courts named in this section were to be instituted "under 
 regulations which shall be established by the legislature." The 
 legislature accordingly passed an act on the 23d day of November, 
 1784, instituting such courts, and providing for their organization 
 and procedure. Under this act the president of the senate could not 
 vote except in case of a tie. This limitation was continued in the 
 act of 1801, chap. 10, and by the revised laws of 1813. The limita- 
 tion was omitted in the revision of 1828, and in January, 1829, the 
 court for the correction of errors expressly declared that the presi- 
 dent of the senate might express an opinion and vote on all ques- 
 tions. Lieutenant-Governor's Claim (1829), 2 Wend. 213, 216.] 
 
 XXXIII. [Impeachnient by assembly.] — That the 
 power of impeaching all officers of the state, for mal 
 and corrupt conduct in their respective offices, be vested 
 in the representatives of the people in assembly ; but that it 
 shall always be necessary that two third parts of the mem- 
 bers present shall consent to and agree in such impeach- 
 ment. That, previous to the trial of every impeachment, 
 the members of the said court shall respectively be sworn, 
 
The First Constitution of New York, 1777. 183 
 
 truly and impartially to try and determine the charge in 
 question, according to evidence; and that no judgment 
 of the said court shall be valid unless it shall be assented 
 to by two third parts of the members then present; nor 
 shall it extend farther than to removal from office and 
 disqualification to hold or enjoy any place of honor, trust, 
 or profit, under this state. But the party so convicted 
 shall be, nevertheless, liable and subject to indictment, 
 trial, judgment, and punishment, according to the laws of 
 the land. 
 
 [Const. 1821, art. 5, § 2; 1846, art. 6, § I ; 1894, art. 6, § 13.] 
 
 XXXIV. [Accused may have counsel.] — And it is 
 
 FURTHER ORDAINED, That in every trial on impeachment, 
 or indictment for crimes or misdemeanor, the party im- 
 peached or indicted shall be allowed counsel, as in civil 
 actions. 
 
 [Const. 1821, art. T,^"]; 1846, 1894, art. i, § 6.] 
 
 XXXV. [Common law continued.] — And this con- 
 vention doth further, in the name and by the authority 
 of the good people of this state, ordain, determine, and 
 DECLARE, That such parts of the common law of England, 
 and of the statute law of England and Great Britain, 
 and of the acts of the legislature of the colony of New 
 York, as together did form the law of the said colony 
 on the 19th day of April, in the year of our Lord one 
 thousand seven hundred and seventy-five, shall be and 
 continue the law of this state, subject to such alterations 
 and provisions as the legislature of this state shall, from 
 time to time, make concerning the same. That such of 
 the said acts as are temporary shall expire at the times 
 limited for their duration respectively. That all such 
 parts of the said common law, and all such of the said 
 
184 Constitutional History of New York. 
 
 statutes and acts aforesaid, or parts thereof, as may be 
 construed to establish or maintain any particular denom- 
 ination of Christians or their ministers, or concern the 
 allegiance heretofore yielded" to, and the supremacy, 
 sovereignty, government, or prerogatives claimed or 
 exercised by, the King of Great Britain and his prede- 
 cessors, over the colony of New York and its inhabi- 
 tants, or are repugnant to this Constitution, be and they 
 hereby are, abrogated and rejected. And this conven- 
 tion doth further ordain. That the resolves or resolutions 
 of the congresses of the colony of New York, and of 
 the convention of the state of New York, now in force, 
 and not repugnant to the government established by this 
 Constitution, shall be considered as making part of the 
 laws of this state; subject, nevertheless, to such altera- 
 tions and provisions as the legislature of this state may, 
 from time to time, make concerning the same. 
 
 [Const. 1821, art. 7, § 13; 1846, art. i, § 17; 1894, art. i, § 16.] 
 
 XXXVI. [Royal grants and charters.] — And be it 
 
 FURTHER ORDAINED, That all grants of land within this 
 state, made by the King of Great Britain, or persons 
 acting under his authority, after the fourteenth day of 
 October, one thousand seven hundred and seventy-five, 
 shall be null and void ; but that nothing in this Constitu- 
 tion contained shall be construed to affect any grants of 
 land, within this state, made by the authority of the said 
 King or his predecessors, or to annul any charters to 
 bodies politic, by him or them, or any of them, made 
 prior to that day. And that none of the said charters 
 shall be adjudged to-be void by reason of any nonuser 
 or misuser of any of their respective rights or privileges, 
 between the nineteenth day of April, in the year of our 
 Lord one thousand seven hundred and seventy-five, and 
 the publication of this Constitution. And further. 
 
The First Constitution of New York, 1777. 185 
 
 That all such of the officers, described in the said charters 
 respectively, as, by the terms of the said charters, were 
 to be appointed by the governor of the colony of New 
 York, with or without the'advice and consent of the coun- 
 cil of the said King, in the said colony, shall henceforth 
 be appointed by the council established by this Constitu- 
 tion for the appointment of officers in this state, until 
 otherwise directed by the legislature. 
 
 [Const. 1821, art. 7, § 14; 1846, art. i, § 18; 1894, art. i, § 17.] 
 
 XXXVII. [Purchase of Indian lands limited,]— 
 
 And whereas. It is of great importance to the safety of 
 this state that peace and amity with the Indians within 
 the same be at all times supported and maintained : And 
 WHEREAS, The frauds too often practiced towards the 
 said Indians, in contracts made for their lands, have, in 
 divers instances, been productive of dangerous discon- 
 tents and animosities; Be it ordained, That no pur- 
 chases or contracts for the sale of lands made since the 
 14th day of October, in the year of our Lord one thou- 
 sand seven hundred and seventy-five, or which may here- 
 after be made with or of the said Indians, within the 
 limits of this state, shall be binding on the said Indians, 
 or deemed valid, unless made under the authority and 
 with the consent of the legislature of this state. 
 
 [Const. 1821, art. 7, § 12; 1846, art. I, § 16; 1894, art. i, § 15.] 
 
 XXXVIII. [Religious toleration.] — And whereas. 
 We are required, by the benevolent principles of rational 
 liberty, not only to expel civil tyranny, but also to guard 
 against that spiritual oppression and intolerance where- 
 with the bigotry and ambition of weak and wicked priests 
 and princes have scourged mankind ; this convention doth 
 further, in the name and by the authority of the good 
 
1 86 Constitutional History of New York. 
 
 people of this state, ordain, determine, and declare, 
 That the free exercise and enjoyment of rehgious pro- 
 fession and worship, without discrimination or prefer- 
 ence, shall forever hereafter be allowed within this state 
 to all mankind : Provided, That the liberty of conscience 
 hereby granted shall not be so construed as to excuse 
 acts of licentiousness, or justify practices inconsistent 
 with the peace or safety of this state. 
 
 [Const. 1821, art. 7, § 3 ; 1846, 1894. art. i, § 3. 
 The history of this section will be found in the chapter on the 
 first Constitution.] 
 
 XXXIX. [Clergymen not eligible to office.] — Airo 
 WHEREAS, The ministers of the gospel are, by their pro- 
 fession, dedicated to the service of God and the cure of 
 souls, and ought not to be diverted from the great duties 
 of their function; therefore, no minister of the gospel, 
 or priest of any denomination whatsoever, shall, at any 
 time hereafter, under any pretense or description what- 
 ever, be eligible to or capable of holding, any civil or 
 military office or place within this state. 
 
 [Const. 1821, art. 7, § 4. Abrogated by Const. 1846.] 
 
 XL. [Militia.] — Akd whereas^ It is of the utmost 
 importance to the safety of every state that it should 
 always be in a condition of defense; and it is the duty 
 of every man who enjoys the protection of society, to 
 be prepared and willing to defend it; this convention, 
 therefore, in the name, and by the authority of the good 
 people of this state^ doth OROAiiq-, determine, and 
 DECLARE, That the militia of this state, at all times here- 
 after, as well in peace as in war, shall be armed and dis- 
 ciplined, and in readiness for service. That all such of 
 the inhabitants of this state (being of the people called 
 Quakers) as, from scruples of conscience, may be averse 
 
The First Constitution of New York, I77J. 187 
 
 to the bearing of arms, be therefrom excused by the 
 legislature, and do pay to the state such sums of money, 
 in lieu of their personal service, as the same may, in the 
 judgment of the legislature, be worth. And that a proper 
 magazine of warlike stores, proportioned to the number 
 of inhabitants, be forever hereafter, at the expense of this 
 state, and by acts of the legislature, established, main- 
 tained, and continued, in every county in this state. 
 
 [Const. 1821, art. 7, § S; 1846, 1894, art. 11, § i.] 
 
 XLI. [Trial by jury preserved.] — And this con- 
 vention doth further ordain, determine, and declare, 
 in the name, and by the authority of the good people of 
 this state, that trial by jury, in all cases in which it hath 
 heretofore been used in the colony of New York, shall 
 be established, and remain inviolate forever. And that 
 no acts of attainder shall be passed by the legislature 
 of this state, for crimes other than those committed before 
 the termination of the present war; and that such acts 
 shall not work a corruption of blood. And further, 
 That the legislature of this state shall, at no time here- 
 after, institute any new court or courts, but such as 
 shall proceed according to the course of the common law. 
 
 [1821, art. 7, § 2; 1846, and 1894, art. i, § 2. 
 
 The commissioners appointed under the act of 1797, chap. 51, to 
 determine certain questions relating to lands in Onondaga county, 
 did not constitute a court, within the meaning of this section. They 
 were merely arbitrators, and were not required to proceed according 
 to the course of the common law, or by jury trial. Barker v. Jack- 
 son (1826) I Paine, SS9, Fed. Cas. No. 989.] 
 
 XLII. [Naturalization.] — And this convention 
 doth further, in the name and by the authority of the 
 good people of this state, ordain, determine, and de- 
 clare. That it shall be in the discretion of the legislature 
 to naturalize all such persons, and in such manner, as 
 
1 88 Constitutional History of New York. 
 
 they shall think proper: Provided, all such of the per- 
 sons so to be by them naturalized, as, being bom in parts 
 beyond sea, and out of the United States of America, 
 shall come to settle in, and become subjects of, this state, 
 shall take an oath of allegiance to this state, and abjure 
 and renounce all allegiance and subjection to all and 
 every foreign king, prince, potentate, and state, in all 
 matters, ecclesiastical as well as civil. By order : 
 
 LEONARD GANSEVOORT, Pres. pro. tern. 
 
 [The subject of naturalization was included in the Federal Con- 
 stitution (art. I, § 8, subd. 4), and this provision in the state Con- 
 stitution was thereby in effect abrogated. It has not been continued 
 in subsequent state Constitutions. The subject was considered and 
 the effect of the Federal Constitution and naturalization statutes 
 declared in Re Ramsden (1857), 13 How. Pr. 429.] 
 
Amendments to First Constitution. 189 
 
 AMENDMENTS TO FIRST CONSTITUTION. 
 
 In Convention of the Delegates of the State of 
 New York. 
 
 Albany, October 27, 1801. 
 
 Whereas, The legislature of this state, by their act, 
 passed the sixth day of April last, did propose to the 
 citizens of this state, to elect by ballot delegates to meet 
 in convention, "for the purpose of considering the parts 
 of the Constitution of this state respecting the number 
 of senators and members of assembly in this state, and 
 with power to reduce and limit the number of them as 
 the said convention might deem proper; and also for 
 the purpose of considering and determining the true con- 
 struction of the twenty-third article of the Constitution 
 of this state relative to the right of nomination to office : 
 
 And whereas. The people of this state have elected 
 the members of this convention, for the purposes above 
 expressed; and this convention, having maturely con- 
 sidered the subjects thus submitted to their determination, 
 do, in the name and by the authority of the people of 
 this state, ordain, determine, and declare : 
 
 I, [Assembly reorganized.] — That the number of 
 the members of the assembly hereafter to be elected shall 
 be one hundred, and shall never exceed one hundred and 
 fifty. 
 
 [Const. 1777, art. 4; 1821, art. I, § 2; 1846, art. 3. § 3; 1894, 
 art. 3, § 2.] 
 
 II. [Apportionment of new assembly.] — That the 
 legislature, at their next session, shall apportion the said 
 one hundred members of the assembly among the several 
 counties of this state, as nearly as may be, according to 
 the number of electors which shall be found to be in each 
 
igo Constitutional History of New York. 
 
 county by the census directed to be taken in the present 
 year. 
 
 [Temporary. See, as to other provisions on the same subject, 
 Const 1777, art. s; 1821, art. i, § 7; 1846, 1894, art. 3, § 5.] 
 
 III. [Senate reorganized.] — That from the first 
 Monday in July next, the number of the senators shall 
 be permanently thirty-two, and that the present number 
 of senators shall be reduced to thirty-two in the follow- 
 ing manner, that is to say : The seats of the eleven sen- 
 ators composing the first class, whose time of service 
 will expire on the first Monday in July next, shall not 
 be filled up ; and out of the second class the seats of one 
 senator from the middle district, and of one senator from 
 the southern district, shall be vacated by the senators of 
 those districts belonging to that class, casting lots among 
 themselves; out of the third class the seats of two sen- 
 ators from the middle district, and of one senator from 
 the eastern district shall be vacated in the same manner; 
 out of the fourth class the seats of one senator from the 
 middle district, of one senator from the eastern district, 
 and of one senator from the western district, shall be 
 vacated in the same manner ; and if any of the said classes 
 shall, neglect to cast lots, the senate shall, in such case, 
 proceed to cast lots for such class or classes so neglecting. 
 And that eight senators shall be chosen at the next elec- 
 tion, in such districts as the legislature shall direct, for 
 the purpose of apportioning the whole number of sen- 
 ators amongst the four great districts of this state, as 
 nearly as may be, according to the number of electors 
 qualified to vote for senators, which shall be found to be 
 in each of the said districts by the census above men- 
 tioned ; which eight senators, -so to be chosen, shall form 
 the first class. 
 
 [Temporary.] 
 
Amendments to First Constitution. 191 
 
 IV. [Future apportionments of legislature.] — That 
 from the first Monday in July next, and on the return of 
 every census thereafter, the number of the assembly shall 
 be increased at the rate of two members for every year, 
 until the whole number shall amount to one hundred and 
 fifty; and that upon the return of every such census, the 
 legislature shall apportion the senators and members of 
 the assembly amongst the great districts and counties of 
 this state, as nearly as may be, according to the number 
 of their respective electors ; Provided, that the legislature 
 shall not be prohibited by anything herein contained, 
 from allowing one member of assembly to each county, 
 heretofore erected within this state. 
 
 [Assembly, Const. 1777, art. 5 ; 1821, art. i, § 7 ; 1846, 1894, art. 3, 
 § 5. Senate, Const. 1777, art. 12; 1821, art. i, § 6; 1846, 1894, art. 
 3, § 4.] 
 
 V. [Council of appointment, povsrers construed.] — 
 
 And this convention do further, in the name and by the 
 authority of the people of this state, ordain, determine, 
 AND DECLARE, That by the true construction of the twenty- 
 third article of the Constitution of this state, the right 
 to nominate all officers, other than those who, by the 
 Constitution, are directed to be otherwise appointed, is 
 vested concurrently in the person administering the gov- 
 ernment of this state for the time being, and in each 
 of the members of the Council of Appointment. 
 
 [Const. 1777, art. 23.] 
 
 By order, 
 
 A. BURR, 
 President of the Convention, and delegate from Orange 
 
 County. 
 
 Attest : James Van Ingen, 
 
 Joseph Constant, Secretaries. 
 
 [See the chapter on the Convention of 1801, and the article on the 
 Council of Appointment, in the chapter on the Convention of 
 1821.] 
 
192 Constitutional History of New York. 
 
 THE SECOND CONSTITUTION, 1821. 
 
 [Note. — This Constitution was framed by a convention which met 
 on the 28th of August, and adjourned on the loth of November, 
 1821. It was approved by the people at a special election held 
 January 15, 16, and 17 following, and took effect December 31, 1822. 
 It is often cited as the Constitution of 1822. Many of its provi- 
 sions were continued in the Constitution of 1894, and the judicial 
 construction of such provisions is therefore reviewed in notes to 
 the latter Constitution. Cases relating to provisions not so continued 
 have been noted here under appropriate sections.] 
 
 We, the people of the state of New York, acknowledg- 
 ing with gratitude the grace and beneficence of God, 
 in permitting us to make choice of our form of govern- 
 ment, do establish this constitution. 
 
 ARTICLE I. 
 
 Section i. [Legislative power.] — The legislative 
 power of this state shall be vested in a senate and an 
 assembly. 
 
 [Const. 1777, art. 2 ; Am. 1801 ; 1846, 1894, art. 3, § i.] 
 
 § 2. [Senate and assembly, how7 constituted.] — The 
 
 senate shall consist of thirty-two members. The senators 
 shall be chosen for four years, and shall be freeholders. 
 The assembly shall consist of one hundred and twenty- 
 eight members, who shall be annually elected. 
 
 [Assembly, Const. 1777, art. 4; Am. 1801, § i; 1S46, 1894, art. 3, 
 § 2. Senate, Const. 1777, art. 10; Am. 1801, § 3; 1846, 1894, art. 
 3, i 2-1 
 
 § 3. [Special powers of two houses.] — A majority 
 of each house shall constitute a quorum to do business. 
 Each house shall determine the rules of its own proceed- 
 ings, and be the judge of the qualifications of its own 
 
The Second Constitution, 1821. 193 
 
 members. Each house shall choose its own officers ; and 
 the senate shall choose a temporary president, when the 
 lieutenant governor shall not attend as president, or shall 
 act as governor. 
 
 [Const. 1777, art. 9; 1846, 1894, art. 3, § 10.] 
 
 § 4. [Journal of proceedings; public sessions; ad- 
 journments.] — Each house shall keep a journal of its 
 proceedings, and publish the same, except such parts as 
 may require secrecy. The doors of each house shall be 
 kept open, except when the public welfare shall require 
 secrecy. Neither house shall, without the consent of the 
 other, adjourn for more than two days. 
 
 [Const. 1777, art. 15; 1846, 1894, art. 3, § 11.] 
 
 § 5. [Senate districts.] — ^The state shall be divided 
 into eight districts, to be called senate districts, each of 
 which shall choose four senators. 
 
 The first district shall consist of the counties of Suf- 
 folk, Queens, Kings, Richmond, and New York. 
 
 The second district shall consist of the counties of 
 Westchester, Putnam, Dutchess, Rockland, Orange, 
 Ulster, and Sullivan. 
 
 The third district shall consist of the counties of 
 Greene, Columbia, Albany, Rensselaer, Schoharie, and 
 Schenectady. 
 
 The fourth district shall consist of the counties of Sara- 
 toga, Montgomery, Hamilton, Washington, Warren, 
 Clinton, Essex, Franklin, and St. Lawrence. 
 
 The fifth district shall consist of the counties of Herki- 
 mer, Oneida, Madison, Oswego, Lewis, and JefTerson. 
 
 The sixth district shall consist of the counties of Dela- 
 ware, Otsego, Chenango, Broome, Cortland, Tompkins, 
 and Tioga. 
 
 Vol. I. Const. Hist. — 13. 
 
194 Constitutional History of New York. 
 
 The seventh district shall consist of the counties of 
 Onondaga, Cayuga, Seneca, and Ontario. 
 
 The eighth district shall consist of the counties of Steu- 
 ben, Livingston, Monroe, Genesee, Niagara, Erie, Alle- 
 gany, Cattaraugus, and Chautauqua. 
 
 And as soon as the senate shall meet, after the first 
 election to be held in pursuance of this Constitution, 
 they shall cause the senators to be divided by lot, into 
 four classes, of eight in each, so that every district shall 
 have one senator of each class; the classes to be num- 
 bered, one, two, three, and four. And the seats of the 
 first class shall be vacated at the end of the first year; 
 of the second class, at the end of the second year ; of the 
 third class, at the end of the third year; of the fourth 
 class, at the end of the fourth year; in order- that one 
 senator be annually elected in each senate district. 
 
 [Const. 1777, art. 12; 1846, 1894, art. 3, § 3.] 
 
 § 6. [Census; reapportionment of senators.] — An 
 
 enumeration of the inhabitants of the state shall be taken, 
 under the direction of the legislature, in the year one 
 thousand eight hundred and twenty-five, and at the end 
 of every ten years thereafter ; and the said districts shall 
 be so altered by the legislature, at the first session after 
 the return of every enumeration, that each senate district 
 shall contain, as nearly as may be, an equal number of 
 inhabitants, excluding aliens, paupers, and persons of 
 colour not taxed; and shall remain unaltered until the 
 return of another enumeration, and shall at all times 
 consist of contiguous territory; and no county shall be 
 divided in the formation of a senate district. 
 
 [Const. 1777, art. s; 1846, 1894, art 3, §§ 4, S-] 
 
 § 7. [Apportionment of members of assembly.]— 
 
 The members of the assembly shall be chosen by counties, 
 
The Second Constitution, 1821. 195 
 
 and shall be apportioned among the several counties of 
 the state, as nearly as may be, according to the numbers 
 of their respective inhabitants, excluding aliens, paupers, 
 and persons of colour, not taxed. An apportionment of 
 members of assembly shall be made by the legislature, 
 at its first session after the return of every enumeration ; 
 and when made, shall remain unaltered until another 
 enumeration shall have been taken. But an apportion- 
 ment of members of the assembly shall be made by the 
 present legislature, according to the last enumeration 
 taken under the authority of the United States, as nearly 
 as may be. Every county heretofore established, and 
 separately organized, shall always be entitled to one 
 member of the assembly; and no new county shall here- 
 after be erected, unless its population shall entitle it to a 
 member. 
 
 [Const. 1777, art. 5; 1846, 1894, art. 3, §§ 4, 5.] 
 
 § 8. [Bills may originate in either house.] — ^Any 
 bill may originate in either house of the legislature; and 
 all bills passed by one house may be amended by the other. 
 
 [New. Consts. 1846, 1894, art. 3, § 13.] 
 
 § 9. [Compensation of members.] — The members 
 of the legislature shall receive for their services a com- 
 pensation, to be ascertained by law, and paid out of the 
 public treasury ; but no increase of the compensation shall 
 take effect during the year in which it shall have been 
 made. And no law shall be passed increasing the com- 
 pensation of the members of the legislature beyond the 
 sum of three dollars a day. 
 
 [New. Consts. 1846, 1894, art. 3, § 6.] 
 
 § 10, [Members not to receive civil appointment.] 
 
 — No member of the legislature shall receive any civil 
 
196 Constitutional History of New York. 
 
 appointment from the governor and senate, or from the 
 legislature, during the term for which he shall have been 
 elected. 
 
 [New. Consts. 1846, 1894, art. 3, § 7.] 
 
 § II. [Disqualification of members.] — No person, 
 being a member of Congress, or holding any judicial 
 or military office under the United States, shall hold 
 a seat in the legislature. And if any person shall, while 
 a member of the legislature, be elected to Congress, or 
 appointed to any office, civil or military, under the gov- 
 ernment of the United States, his acceptance thereof shall 
 vacate his seat. 
 
 [New. Consts. 1846, 1894, art. 3, § 8.] 
 
 § 12. [Governor to approve bills.] — Every bill 
 which shall have passed the senate and assembly shall, 
 before it become a law, be presented to the governor; 
 if he approve, he shall sign it ; but if not, he shall return 
 it with his objections to that house in which it shall 
 have originated; who shall enter the objections at large 
 on their journal and proceed to reconsider it. If, after 
 such reconsideration, two thirds of the members present 
 shall agree to pass the bill, it shall be sent, together with 
 the objections, to the other house, by which it shall like- 
 wise be reconsidered; and if approved by two thirds of 
 the members present, it shall become a law. But in all 
 such cases, the votes of both houses shall be determined 
 by yeas and nays, and the names of the persons voting 
 for, and against, the bill shall be entered on the journal 
 of each house respectively. If any bill shall not be re- 
 turned by the governor within ten days (Sundays ex- 
 cepted) after it shall have been presented to him, the 
 same shall be a law in like manner as if he had signed 
 
The Second Constitution, 1821. 197 
 
 it, tmless the legislature shall, by their adjournment, pre- 
 vent its return ; in which case it shall not be a law. 
 
 [Const 1777, art. 3; 1846, 1894, art. 4, § 9.] 
 
 § 13. [Removals by legislature.] — ^All officers hold- 
 ing their offices during good behavior may be removed 
 by joint resolution of the two houses of the legislature, 
 if two thirds of all the members elected to the assembly, 
 and a majorit)' of all the members elected to the senate, 
 concm- therein, 
 
 [New, Coasts. 1846, 1894, art. 10, I 3.] 
 
 § 14. [Political year; meeting of legislature.] — ^The 
 political year shall begin on the first day of January: 
 and the l^slature shall, ever\- year, assemble on the 
 first Tuesday of January, unless a different day shall be 
 appointed by law, 
 
 [New. Consts. 1846, 1894, art 10, § 6.] 
 
 § 15. [Ejections, when held.] — ^The next election 
 for governor, lieutenant governor, senators, and mem- 
 bers of assembly shall commence on the first Monday of 
 November, one thousand eight hundred and twenty-two : 
 and all subsequent elections shall be held at such time, 
 in the month of October or November, as the legislature 
 shall, by law, provide, 
 
 [New. Consts. 1846, 1894, art. 3, § 9-] 
 
 § 16. [Commencement of official term after first 
 election.] — ^The governor, lieutenant governor, sena- 
 tors, and members of assembly, first elected under this 
 Constitution, shall enter on the duties of their respective 
 offices on the first day of Januarj^, one thousand eight 
 
198 Constitutional History of New York. 
 
 hundred and twenty-three; and the governor, Heutenant 
 governor, senators, and members of assembly, now in 
 office, shall continue to hold the same until the first day 
 of January, one thousand eight hundred and twenty-three, 
 and no longer. 
 
 [New. Temporary, and abrogated by Const. 1846.] 
 ARTICLE II. 
 
 Section i. [Qualifications of voters.] — Every male 
 citizen of the age of twenty-one years, who shall have 
 been an inhabitant of this state one year preceding any 
 election, and for the last six months a resident of the 
 town or county where he may offer his vote; and shall 
 have, within the next year preceding the election, paid 
 a tax to the state or county, assessed upon his real or 
 personal property; or shall by law be exempted from 
 taxation; or, being armed and equipped according to 
 law, shall have performed, within that year, military 
 duty in the militia of this state ; or who shall be exempted 
 from performing militia duty in consequence of being a 
 fireman in any city, town, or village in this state; and 
 also, every male citizen of the age of twenty-one years, 
 who shall have been, for three years next preceding such 
 election, an inhabitant of this state; and, for the last 
 year, a resident in the town or county where he may 
 offer his vote; and shall have been, within the last year, 
 assessed to labor upon the public highways, and shall 
 have performed the labor, or paid an equivalent there- 
 for, according to law, shall be entitled to vote in the town 
 or ward where he actually resides, and not elsewhere, 
 for all officers that now are, or hereafter may be, elective 
 by the people ; but no man of colour, unless he shall have 
 been for three years a citizen of this state, and for one 
 year next preceding any election, shall be seized and pos- 
 
The Second Constitution, 182 1. 199 
 
 sessed of a freehold estate of the value of two hundred 
 and fifty dollars, over and above all debts and incum- 
 brances charged thereon; and shall have been actually 
 rated, and paid a tax thereon, shall be entitled to vote 
 at any such election. And no person of colour shall be 
 subject to direct taxation unless he shall be seized and 
 possessed of such real estate as aforesaid. 
 
 [Const. 1777, art. 7 ; 1846, 1894, art. 2, § i. Property qualifications, 
 except as to colored voters, were abrogated by the amendment of 
 1826.] 
 
 § 2. [Exclusion from right of suffrage.] — Laws 
 may be passed excluding from the right of suffrage per- 
 sons who have been, or may be, convicted of infamous 
 crimes. 
 
 [New. Consts. 1846, 1894, art. 2, I 2.] 
 
 § 3. [Registration of voters.] — ^Laws shall be made 
 for ascertaining, by proper proofs, the citizens who shall 
 be entitled to the right of suffrage, hereby established. 
 
 [New. Consts. 1846, 1894, art. 2, § 4.] 
 
 § 4. [Elections to be by ballot.] — All elections by 
 the citizens shall be by ballot, except for such town 
 officers as may by law be directed to be otherwise chosen. 
 
 [Const. 1777, art 6; Consts. 1846, 1894, art 2, § 5.] 
 
 ARTICLE III. 
 
 Section i. [Governor and lieutenant governor; 
 term of office.] — The executive power shall be vested 
 in a governor. He shall hold his office for two years; 
 and a lieutenant governor shall be chosen at the same 
 time, and for the same term. 
 
 [Const. 1777, arts. 17, 20; 1846, 1894 art. 4, § i.] 
 
2CX) Constitutional History of New York. 
 
 § 2. [Qualifications of governor.] — No person, ex- 
 cept a native citizen of the United States, shall be eligible 
 to the office of governor ; nor shall any person be eligible 
 to that office who shall not be a freeholder, and shall 
 not have attained the age of thirty years, and have been 
 five years a resident within this state; unless he shall 
 have been absent during that time, on public business 
 of the United States, or of this state. 
 
 [Const. 1777, art. 17; 1846, 1894, art. 4, § 2.] 
 
 § 3. [Governor and lieutenant governor, election 
 of.] — The governor and lieutenant governor shall be 
 elected at the times and places of choosing members of 
 the legislature. The persons respectively having the 
 highest number of votes for governor and lieutenant 
 governor shall be elected; but in case two or more shall 
 have an equal and the highest number of votes for gov- 
 ernor, or for lieutenant governor, the two houses of the 
 legislature shall, by joint ballot, choose one of the said 
 persons so having an equal and the highest number of 
 votes, for governor or lieutenant governor. 
 
 [Time of election, Const. 1777, art. 17. Remainder of section new. 
 Consts. 1846, 1894, art. 4, § 3.] 
 
 § 4. [Governor's general powers.] — The governor 
 shall be general and commander-in-chief of all the militia, 
 and admiral of the navy of the state. He shall have 
 power to convene the legislature (or the senate only), 
 on extraordinary occasions. He shall communicate by 
 message to the legislature at every session, the condition 
 of the state ; and recommend such matters to them as he 
 shall judge expedient. He shall transact all necessary 
 business with the officers of government, civil and mili- 
 tary. He shall expedite all such measures as may be 
 resolved upon by the legislature, and shall take care that 
 
The Second Constitution, 182 1. 201 
 
 the laws are faithfully executed. He shall, at stated 
 times, receive for his services a compensation, which 
 shall neither be increased nor diminished during the 
 term for which he shall have been elected. 
 
 [Const 1777, art. 18; 1846, 1894 art. 4, § 4.] 
 
 § 5. [Governor may grant pardons and reprieves.] 
 — The governor shall have power to grant reprieves 
 and pardons after conviction, for all offenses, except 
 treason and cases of impeachment. Upon convictions for 
 treason, he shall have power to suspend the execution of 
 the sentence until the case shall be reported to the legis- 
 lature, at its next meeting; when the legislature shall 
 either pardon, or direct the execution of the criminal, or 
 grant a farther reprieve. 
 
 [Const. 1777, art. 18; 1846, 1894, art. 4, § S.] 
 
 § 6. [When lieutenant governor to act as gov- 
 ernor.] — In case of the impeachment of the governor, 
 or his removal from office, death, resignation, or absence 
 from the state, the powers and duties of the office shall 
 devolve upon the lieutenant governor, for the residue 
 of the term, or until the governor, absent or impeached, 
 shall return, or be acquitted. But when the governor 
 shall, with the consent of the legislature, be out of the 
 state, in time of war, at the head of a military force 
 thereof, he shall still continue commander-in-chief of all 
 the military force of the state. 
 
 [Const 1777, art. 20; 1846, 1894, art. 4, I 6.] 
 
 § 7. [When president of senate to act as governor.] 
 
 — The lieutenant governor shall be president of the 
 senate, but shall have only a casting vote therein. If, 
 during a vacancy of the office of governor, the lieutenant 
 
202 Constitutional History of New York. 
 
 governor shall be impeached, displaced, resign, die, or 
 be absent from the state, the president of the senate 
 shall act as governor until the vacancy shall be filled, or 
 the disability shall cease. 
 
 [Const. 1777, art. 20; 1846, 1894, art. 4, § 7.] 
 
 ARTICLE IV. 
 
 Section i. [Militia officers, how chosen.] — Militia 
 officers shall be chosen or appointed as follows: Cap- 
 tains, subalterns, and noncommissioned officers shall be 
 chosen by the written votes of the members of their 
 respective companies. Field officers of regiments and 
 separate battalions, by the written votes of the commis- 
 sioned officers of the respective regiments, and separate 
 battalions. Brigadier-generals, by the field officers of 
 their respective brigades. Major-generals, brigadier- 
 generals, and commanding officers of regiments or sep- 
 arate battalions, shall appoint the stafif officers of their 
 respective divisions, brigades, regiments, or separate 
 battalions. 
 
 [Const. 1777, art. 24; 1846, 1894, art. 11, § 2.] 
 
 § 2. [Governor to appoint certain militia officers.] 
 
 — The governor shall nominate, and with the consent 
 of the senate, appoint, all major-generals, brigade in- 
 spectors, and chiefs of the staff departments, except the 
 adjutant-general and commissary-general. The adju- 
 tant-general shall be appointed by the governor. 
 
 [Const. 1777, art. 24; 1846, art. 11, § 3; 1894, art. 11, § 4.] 
 
 § 3. [Legislature to regulate elections of militia 
 officers.] — The legislature shall, by law, direct the 
 
The Second Constitution, 1821. 203 
 
 time and manner of electing militia officers, and of certi- 
 fying their elections to the governor. 
 
 [Const. 1777, art, 24; 1846, art. 11, § 4; 1894, art. 11, § 5.] 
 
 § 4. [Commissioned officers; how commissioned 
 and removed.] — The commissioned officers of the 
 militia shall be commissioned by the governor, and no 
 commissioned officer shall be removed from office unless 
 by the senate, on the recommendation of the governor, 
 stating the grounds on which such removal is recom- 
 mended, or by the decision of a court-martial, pursuant 
 to law. The present officers of the militia shall hold 
 their commission, subject to removal, as before provided. 
 
 [New. Const. 1846, art. 11, § s; 1894, art. 11, § 6.] 
 
 § 5. [Legislature may prescribe other modes of ap- 
 pointment and removal.] — In case the mode of elec- 
 tion and appointment of militia officers, hereby directed, 
 shall not be found conducive to the improvement of the 
 militia, the legislature may abolish the same, and provide 
 by law for their appointment and removal, if two thirds 
 of the members present in each house shall concur therein. 
 
 [New. Const. 1846, art. 11, § 6; 1894, art. 11, § 5.] 
 
 § 6. [State officers; how appointed.] — The secre- 
 tary of state, comptroller, treasurer, attorney-general, 
 surveyor-general, and commissary-general shall be ap- 
 pointed as follows : The senate and assembly shall each 
 openly nominate one person for the said offices respec- 
 tively; after which, they shall meet together, and if they 
 shall agree in their nominations, the person so nominated 
 shall be appointed to the office for which he shall be nom- 
 inated. If they shall disagree, the appointment shall be 
 made by the joint ballot of the senators and members 
 
204 Constitutional History of New York. 
 
 of assembly. The treasurer shall be chosen annually. 
 The secretary of state, comptroller, attorney-general, sur- 
 veyor-general, and commissary-general shall hold their 
 offices for three years, unless sooner removed by con- 
 current resolution of the senate and assembly. 
 
 [Const. 1777, art. 23; 1846, art. 5, § i; 1894, art 5, § i.] 
 
 § 7. [Governor to appoint judicial officers, except 
 justices of the peace.] — The governor shall nominate, 
 by message, in writing, and with the consent of the 
 senate, shall appoint, all judicial officers, except justices 
 of the peace, who shall be appointed in manner follow- 
 ing, that is to say: The board of supervisors in every 
 county in this state shall, at such times as the legislature 
 may direct, meet together; and they, or a majority of 
 them so assembled, shall nominate so many persons as 
 shall be equal to the number of justices of the peace 
 to be appointed in the several towns in the respective 
 counties. And the judges of the respective county courts, 
 or a majority of them, shall also meet and nominate a 
 like number of persons; and it shall be the duty of the 
 said board of supervisors, and judges of county courts, 
 to compare such nominations, at such time and place 
 as the legislature may direct. And if, on such compari- 
 son, the said boards of supervisors and judges of county 
 courts shall agree in their nominations, in all, or in 
 part, they shall file a certificate of the nominations in 
 which they shall agree, in the office of the clerk of the 
 county ; and the person or persons named in such certifi- 
 cates shall be justices of the peace. And in case of disa- 
 greement in whole, or in part, it shall be the farther 
 duty of the said boards of supervisors, and judges re- 
 spectively, to transmit their said nominations, so far as 
 they disagree in the same, to the governor, who shall 
 select from the said nominations, and appoint so many 
 
The Second Constitution, 1821. 205 
 
 justices of the peace as shall be requisite to fill the 
 vacancies. 
 
 Every person appointed a justice of the peace shall 
 hold his office for four years, unless removed by the 
 county court, for causes particularly assigned by the 
 judges of the said court. And no justice of the peace 
 shall be removed until he shall have notice of the charges 
 made against him, and an opportunity of being heard 
 in his defense. 
 
 [Const. 1777, art. 24; Amendment of 1826; Consts. 1846 and 1894, 
 art. 10, § 2; 1894, art. 6, § 17. 
 
 In People ex rel. Atty. Gen. v. New York (1840), 25 Wend. 9, 
 the court for the correction of errors by a tie vote affirmed the 
 judgment of the supreme court that the term "judicial officers" did 
 not include the mayor and aldermen of the city of New York, who, 
 prior and subsequent to the adoption of the second Constitution, had 
 exercised large judicial powers, and that they continued to be mem- 
 bers of the county court notwithstanding the provision in this section 
 requiring the governor to appoint judicial officers. See also Colt v. 
 People (1842), I Park. Crim. Rep. 611, where it was held that 2 R. 
 S. 204, § 28 (2 Edm. 213), making the mayor and aldermen of New 
 York members of the court of oyer and terminer, was not a violation 
 of the foregoing section. See also People v. Colt (1842), 3 Hill, 
 432. 
 
 In the exercise of the power of removal of justices of the peace, 
 vested by this section of the Constitution in the county court, that 
 court had a discretion whether it would hear a charge preferred 
 against a justice. Ex parte Johnson (1824), 3 Cow. 371.] 
 
 § 8. [Sheriffs, clerks, and registers; election and re- 
 moval.] — Sheriffs and clerks of counties, including 
 the register and clerk of the city and county of New 
 York, shall be chosen by the electors of the respective 
 counties, once in every three years, and as often as 
 vacancies shall happen. Sheriffs shall hold no other office, 
 and be ineligible for the next three years after the ter- 
 mination of their offices. They may be required by law 
 to renew their security from time to time; and in de- 
 fault of giving such new security, their offices shall be 
 
2o6 Constitutional History of New York. 
 
 deemed vacant. But the county shall never be made 
 responsible for the acts of the sheriff; and the governor 
 may remove any such sheriff, clerk, or register, at any 
 time within the three years for which he shall be elected, 
 giving to such sheriff, clerk, or register, a copy of the 
 charge against him, and an opportunity of being heard 
 in his defense, before any removal shall be made. 
 
 [Const. 1777, arts. 26, 28; 1846, 1894, art. 10, § i.] 
 
 § 9. [District attorneys and clerks of courts; ap- 
 pointment and removal.] — The clerks of courts, ex- 
 cept those clerks whose appointment is provided for in 
 the preceding section, shall be appointed by the courts 
 of which they respectively are clerks; and district at- 
 torneys, by the county courts. Clerks of courts and dis- 
 trict attorneys shall hold their offices for three years, 
 unless sooner removed by the courts appointing them. 
 
 [Clerks of courts, Const. 1777, art. 27; 1846, art. 6, § 19. Judiciary 
 Article, 1869, art. 6, § 20; 1894, art. 6, § 19. District attorney and 
 clerks, Consts. 1846 and 1894, art. 10, § i. 
 
 Under this section a district attorney must have been appointed 
 by "the court of common pleas and the court of general sessions of 
 the county for which the appointment is made" when both were 
 holden for the transaction of business, and by judges appointed by 
 the governor and senate. Justices of the peace, though members of 
 the court for some purposes, could not participate in making such 
 an appointment. An appointment by the common pleas after a 
 final adjournment of the court of general sessions was held void. 
 People ex rel. Livingston v. Albany Common Fleas (1837), 19 
 Wend. 27. 
 
 The power of the legislature to change the method of selecting 
 clerks of courts was considered in Warner v. People (1845), 2 
 Denio, 272, 43 Am. Dec. 740, where it was held that the legislature 
 could not create a new office for the performance of the same, or the 
 principal part of the same, duties devolved on an existing office 
 which was filled by an election by the people, and direct the appoint- 
 ment to be made in another manner. This case contains an inter- 
 esting sketch by Chancellor Walworth of the origin of the office of 
 county clerk. See also note to § i of article 10 of the Constitution 
 of 1894.] 
 
The Second Constitution, 1821. 207 
 
 § 10. [Mayors, how appointed.] — The mayors of 
 all the cities in this state shall be appointed annually, by 
 the common councils of the respective cities. 
 
 [Const. 1777, art. 23. See amendments, 1833 and 1839.] 
 
 § II. [Coroners, election and removal.] — So many 
 coroners as the legislature may direct, not exceeding- 
 four in each county, shall be elected in the same manner 
 as sheriffs, and shall hold their offices for the same term, 
 and be removable in like manner. 
 
 [Const. 1777, art. 26; 1846, art. 10, § i; 1894, art. 10, § 2.] 
 
 § 12. [Masters, examiners, and registers in chan- 
 cery.] — The governor shall nominate, and, with the 
 consent of the senate, appoint, masters and examiners in 
 chancery, who shall hold their offices for three years, 
 unless sooner removed by the senate, on the recommenda- 
 tion of the governor. The register and assistant reg- 
 isters shall be appointed by the chancellor, and hold their 
 offices during his pleasure. 
 
 [Const. 1777, art. 27. The Constitution of 1846, art. 14, § 8, 
 abolished these and other offices connected with the court of chan- 
 cery.] 
 
 § 13. [Officers of other courts, how chosen.] — The 
 
 clerk of the court of oyer and terminer, and general 
 sessions of the peace, in and for the city and county of 
 New York, shall be appointed by the court of general 
 sessions of the peace in said city, and hold his office 
 during the pleasure of the said court: and such clerks 
 and other officers of courts, whose appointment is not 
 herein provided for, shall be appointed by the several 
 courts, or by the governor, with the consent of the senate, 
 as may be directed by law. 
 
 [New. Consts. 1846, 1894, art. ib, § 2.] 
 
2o8 Constitutional History of 'New York. 
 
 § 14. [Justices' courts in New York.] — ^The special 
 justices, and the assistant justices, and their clerks, 
 in the city of New York, shall be appointed by the com- 
 mon council of the said city; and shall hold their offices 
 for the same term that the justices of the peace in the 
 other counties of this state hold their offices, and shall 
 be removable in like manner. 
 
 [New. Const. 1846, art. 6, § 14; 1894, art. 6, §§ 17, 18.] 
 
 § 15. [Other officers, how chosen.] — All officers 
 heretofore elective by the people shall continue to be 
 elected; and all other officers whose appointment is not 
 provided for by this constitution, and all officers whose 
 offices may be hereafter created by law, shall be elected 
 by the people, or appointed, as may by law be directed. 
 
 [Const. 1777, art. 29; 1846, 1894, art. 10, § 2.] 
 
 § 1 6. [Duration of offices not herein provided for.] 
 
 — Where the duration of any office is not prescribed 
 by this Constitution, it may be declared by law; and 
 if not so declared, such office shall be held during the 
 pleasure of the authority making the appointment. 
 
 [Const. 1777, art. 28; 1846, 1894, art. 10, § 3.] 
 
 ARTICLE V. 
 
 Section i. [Court of impeachment, and for correc- 
 tion of errors.] — The court for the trial of impeach- 
 ments and the correction of errors shall consist of the 
 president of the senate, the senators, the chancellor, and 
 the justices of the supreme court, or the major part of 
 them; but when an impeachment shall be prosecuted 
 against the chancellor or any justice of the supreme 
 court, the person so impeached shall be suspended from 
 
The Second Constitution, 1821. 209 
 
 exercising his office until his acquittal; and when an 
 appeal from a decree in chancery shall be heard, the 
 chancellor shall inform the court of the reasons for 
 his decree, but shall have no voice in the final sentence ; 
 and when a writ of error shall be brought, on a judg- 
 ment of the supreme court, the justices of that court 
 shall assign the reasons for their judgment, but shall 
 not have a voice for its affirmance or reversal. 
 
 [Const. 1777, art. 32; 1846, art. 6, § i. Judiciary Article 1869; 
 1894, art. 6, § 13. 
 
 Under the Constitution of 1777, § 32, the legislature gave the 
 lieutenant governor only a casting vote in this court, expressly de- 
 claring that he could not vote in any other case on any question to 
 be determined by the court. See L. 1784-85, chap. II, L. 1801, chap. 
 10, and I R. L. 1813, p. 135. January 12, 1829, Enos T. Throop, 
 lieutenant governor and president of the senate, said, at the opening 
 of the term of the court, that he believed he had the right, and that 
 it was his , duty to express his opinion and vote on all questions 
 properly before the court; and he asked the court to declare his 
 status and powers. Chancellor Walworth offered a resolution declar- 
 ing, in effect, that the lieutenant governor possessed the right to 
 express an opinion and vote on all questions. The chancellor pre- 
 sented an opinion in support of his resolution, reviewing the history 
 of the constitutional provision relating to the composition of the 
 court, and cited the statutes which had been passed under the first 
 Constitution. He quoted from the revisers of 1828 the suggestion 
 that the early legislation restricting to a casting vote the lieutenant 
 governor's power as a member of the court was probably invalid, 
 and called attention to the fact that the revised statutes omitted this 
 limitation. The court adopted the chancellor's resolution by a vote 
 of 23 to S- Lieutenant-Governor's Claim (1829), 2 Wend. 213, 216. 
 
 A question somewhat similar arose in Re Members of Court of 
 Errors (1830), 6 Wend, 158, where the court for the correction of 
 errors adopted a resolution declaring in effect that the chancellor 
 might decide or take part in the decision of a cause determined 
 by him when sitting as a circuit judge. The legislature had, by the 
 Revised Statutes, 2 R. S. 275 (2 Edm. 284, § 3), declared that "no 
 judge of any appellate court, or of any court to which a writ of cer- 
 tiorari or of error shall be returnable, shall decide or take part in 
 the decision of any cause or matter which shall have been determined 
 by him when sitting as a judge of any other court," but in the 
 chancellor's case this was deemed to be an unwarranted legislative 
 limitation of the powers conferred by the Constitution on the raem- 
 VoL. I. Const. Hist. — 14 
 
2IO Constitutional History of New York. 
 
 bers of the court for the correction of errors, and while in terms it 
 would have prevented the chancellor from sitting in review of a 
 decision made by him while acting as a circuit judge, the legislature 
 could not thus add to the limitations of the chancellor's powers as 
 prescribed in the Constitution.] 
 
 § 2. [Assembly may impeach civil officers.] — The 
 assembly shall have the power of impeaching all civil 
 officers of this state for mal and corrupt conduct in office, 
 and for high crimes and misdemeanors; but a majority 
 of all the members elected shall concur in an impeach- 
 ment. Before the trial of an impeachment, the mem- 
 bers of the court shall take an oath or affirmation, truly 
 and impartially to try and determine the charge in ques- 
 tion, according to evidence; and no person shall be con- 
 victed without the concurrence of two thirds of the mem- 
 bers present. Judgment, in cases of impeachment, shall 
 not extend farther than the removal from office, and 
 disqualification to hold, and enjoy, any office of honor, 
 trust, or profit, under this state; but the party convicted 
 shall be liable to indictment and punishment, according 
 to law. 
 
 [Const. 1777, art. 33; 1846, art. 6, § i; Judiciary Article of 1869, 
 § I ; 1894, art. 6, § 13.] 
 
 § 3. [Chancellor and supreme court justices, official 
 term.] — The chancellor and justices of the supreme 
 court shall hold their offices during good behavior, or 
 until they shall attain the age of sixty years. 
 
 [Const. 1777, art. 24; 1846, art. 6, § 4; Judiciary Article of 1869, 
 § 13; 1894, art. 6, §§ 4, 12. Court of chancery abolished by Consti- 
 tution of 1846.] 
 
 § 4. [Supreme court, how constituted.] — The su- 
 preme court shall consist of a chief justice and two jus- 
 tices, any of whom may hold the court. 
 
 [New. Const. 1846, art. 6; Judiciary Article of 1869; 1894, art. 6. J 
 
The Second Constitution, 1821. 211 
 
 § 5. [Judicial circuits.] — The state shall be divided, 
 by law, into a convenient number of circuits, not less 
 than four, nor exceeding eight, subject to alteration, 
 by the legislature, from time to time, as the public good 
 may require; for each of which a circuit judge shall 
 be appointed, in the same manner, and hold his office 
 by the same tenure, as the justices of the supreme court; 
 and who shall possess the powers of a justice of the 
 supreme court at chambers, and in the trial of issues 
 joined in the supreme court; and in courts of oyer and 
 terminer and gaol delivery. And such equity powers 
 may be vested in the said circuit judges, or in the county 
 courts, or in such other subordinate courts, as the legis- 
 lature may by law direct, subject to the appellate juris- 
 diction of the chancellor. 
 
 [New. Judicial districts. Const. 1846, art. 6, § 2; Judiciary- 
 Article of 1869, § 6; 1894, art. 6, § i.] 
 
 § 6. [County judges and recorders.] — Judges of 
 the county courts and recorders of cities shall hold their 
 offices for five years, but may be removed by the senate, 
 on the recommendation of the governor, for causes to 
 be stated in such recommendation. 
 
 [Const. 1777, art. 24; 1846, art. 6, § 14; Judiciary Article of 1869, 
 § 15; 1894, art. 6, § 14.] 
 
 § 7. [Chancellor and supreme court judges to hold 
 no other office.] — Neither the chancellor nor justices 
 of the supreme court nor any circuit judge shall hold 
 any other office or public trust. All votes for any elec- 
 tive office, given by the legislature or the people, for 
 the chancellor or a justice of the supreme court or circuit 
 judge, during his continuance in his judicial office, shall 
 be void. 
 
 [Const. 1777, art. 28; 1846, art. 6, § 8; Judiciary Article of 1869, 
 § 10; 1894, art. 6, § 10.] 
 
212 Constitutional History of New York. 
 
 ARTICLE VI. 
 
 Section i. [Official oath.J — Members of the legis- 
 lature and all ofificers, executive and judicial, except such 
 inferior ofificers as may by law be exempted, shall, be- 
 fore they enter on the duties of their respective offices, 
 take and subscribe the following oath or affirmation : 
 
 I do solemnly swear (or affirm, as the case may be) 
 that I will support the Constitution of the United States, 
 and the Constitution of the state of New York;, and 
 that I will faithfully discharge the duties of the office 
 of according to the best of my ability. 
 
 And no other oath, declaration, or test shall be required 
 as a qualification for any office or public trust. 
 
 [Const. 1846, art. 12; 1894, art. 13, § i.] 
 ARTICLE VII. 
 
 Section i. [Rights of citizens.] — -No member of 
 this state shall be disfranchised or deprived of any of 
 the rights or privileges secured to any citizen thereof, 
 unless by the law of the land, or the judgment of his 
 peers. 
 
 fMagna Charta, chap. 39; Const. 1777, art. 13; 1846, 1894, art. 
 I, § I.] 
 
 § 2. [Trial by jury preserved.] — The trial by jury, 
 in all cases in which it has been heretofore used, shall 
 remain inviolate forever ; and no new court shall be 
 instituted, but such as shall proceed according to the 
 course of the common law ; except such courts of equity 
 as the legislation is herein authorized to establish. 
 
 [Const. 1777. art. 41 ; 1846, 1894, art. i, § 2. 
 
 In Re Smith (1833), 10 Wend. 449, it was held that the provision 
 forbidding the creation of courts proceeding differently from the 
 course of the common law refers to courts exercising the usual 
 
The Second Constitution, 1821. 213 
 
 jurisdiction of courts of law, but proceeding by modes unknown 
 to the common law; and does not prevent the legislature from pro- 
 viding for disciplinary proceedings against members of medical so- 
 cieties, and their expulsion under specified conditions.] 
 
 § 3. [Religious toleration.] — The free exercise and 
 enjoyment of religious profession and worship, with- 
 out discrimination or preference, shall forever be allowed 
 in this state, to all mankind ; but the Hberty of conscience 
 hereby secured shall not be so construed as to excuse 
 acts of licentiousness, or justify practices inconsistent 
 with the peace or safety of this state. 
 
 [Const. 1777, art. 38; 1846, 1894, art. I, § 3.] 
 
 § 4. [Clergymen not eligible to office.] — And 
 
 WHEREAS, The ministers of the gospel are, by their 
 profession, dedicated to the service of God, and the cure 
 of souls, and ought not to be diverted from the great 
 duties of their functions: therefore, no minister of the 
 gospel, or priest of any denomination whatsoever, shall 
 at any time hereafter, under any pretense or description 
 whatever, be eligible to, or capable of holding, any civil 
 or military office or place within this state. 
 
 [Const. 1777, art. 39. Abrogated by Constitution of 1846.] 
 
 § 5. [Militia to be maintained; who may be ex- 
 cused from service.]— The militia of this state shall, 
 at all times hereafter, be armed and disciplined, and in 
 readiness for service; but all such inhabitants of this 
 state, of any religious denomination whatever, as from 
 scruples of conscience may be averse to bearing arms, 
 shall be excused therefrom by paying to the state an 
 equivalent in money; and the legislature shall provide, 
 bv law, for the collection of such equivalent, to be esti- 
 
214 Constitutional History of Nezv York. 
 
 mated according to the expense, in time and money, of 
 an ordinary able-bodied militia-man. 
 
 [Const. 1777, art. 40; 1846, 1894, art. 11, § i.] 
 
 § 6. [Habeas corpus, when writ may be sus- 
 pended.] — The privilege of the writ of habeas corpus 
 shall not be suspended unless when, in case of rebellion 
 or invasion, the public safety may require its suspension. 
 
 [New. Consts. 1846, 1894, art. i, § 4.] 
 
 § 7. [Rights of accused in criminal cases; taking 
 private property for public use.] — No person shall be 
 held to answer for a capital or otherwise infamous crime 
 (except in cases of impeachment; and in cases of the mili- 
 tia, when in actual service, and the land and naval forces 
 in time of war, or which this state may keep, with the 
 consent of Congress, in time of peace; and in cases of 
 petit larceny, under the regulation of the legislature) 
 unless on presentment or indictment of a grand jury; 
 and in every trial on impeachment or indictment, the 
 party accused shall be allowed counsel, as in civil actions. 
 No person shall be subject, for the same offense, to be 
 twice put in jeopardy of life or limb; nor shall he be 
 compelled, in any criminal case, to be a witness against 
 himself; nor be deprived of life, liberty, or property 
 without due process of law; nor shall private property 
 be taken for public use, without just compensation. 
 
 [New. Consts. 1846, 1894, art. i, § 6. 
 
 This section did not give the accused before a court martial the 
 absolute right to counsel, but the allowance of counsel was in the 
 discretion of the court. Rathbun v. Sawyer (1836), is Wend. 451. 
 By the Constitution of 1846 the provision in relation to counsel was 
 extended, and included any trial in any court. Chief Judge Church 
 in People ex rel. Garling v. Van Allen (1873), SS N. Y. 31-35, sug- 
 gests that this change was made in consequence of the decision in 
 Rathbun v. Sawyer, that the accused before a court martial was 
 not entitled to counsel.] 
 
The Second Constitution, 1821. 215 
 
 § 8. [Freedom of speech and press; evidence in 
 libel cases.] — Every citizen may freely speak, write, 
 and publish his sentiments on all subjects, being re- 
 sponsible for the abuse of that right; and no law shall 
 be passed to restrain or abridge the liberty of speech 
 or of the press. In all prosecutions or indictments for 
 libels, the truth may be given in evidence, to the jury; 
 and if it shall appear to the jury that the matter charged 
 as libelous is true, and was published with good motives, 
 and for justifiable ends, the party shall be acquitted; and 
 the jury shall have the right to determine the law and 
 the fact. 
 
 [New. Consts. 1846, 1894, art. i, § 8.] 
 
 § 9. [Two-thirds bills.] — The assent of two thirds 
 of the members elected to each branch of the legislature 
 shall be requisite to every bill appropriating the public 
 moneys or property for local or private purposes, or 
 creating, continuing, altering, or renewing, any body 
 politic or corporate. 
 
 [New. Appropriations. Const. 1846, art. i, § 9; 1894, art. 3, § 20. 
 Charter provisions abrogated by the Constitution of 1846. 
 
 The provision of this section requiring a two-thirds vote on the 
 passage of a bill for the creation of a corporation has been omitted 
 in subsequent constitutions; the decisions relating to this provision 
 are therefore cited here. The provision was held by the supreme 
 court not applicable to public corporations. People v. Morris (1835), 
 33 Wend. 325; People ex rel. Lynch v. Neiv York (1841), 25 Wend. 
 680; People V. Purdy (1841), 2 Hill, 31; but the court for the 
 correction of errors in Purdy v. People (1843), 4 Hill, 384, took a 
 contrary view and held that it applied to all corporations, public and 
 private. This rule was afterwards followed by the supreme court in 
 Be Bow V. People (1845), i Denio, 9, and in Corning v. Greene 
 (1856), 23 Barb. 33- 
 
 Joint stock associations organized under the free banking law 
 were held not subject to this constitutional provision. Curtis v. 
 Leavitt (1853), 17 Barb. 309. 
 
 A corporation statute was presumed to have received the requisite 
 
2i6 Constitutional History of New York. 
 
 two-thirds vote in the absence of any allegation to the contrary. 
 Buffalo &■ N. F. R. Co. v. Buffalo (1843), 5 Hill, 209. 
 
 A two-thirds vote was not necessary on the passage of an act 
 erecting a new county. People v. Morrell (1839), 21 Wend. 563. 
 
 The act of 1846, chap. 244, relating to a highway between the 
 villages of Middleville and Herkimer, did not require a two-thirds 
 vote. Smith v. Helmer (1849), 7 Barb. 416.] 
 
 § 10. [Common school funds; canals; salt springs.] 
 
 — The proceeds of all lands belonging to this state, ex- 
 cept such parts thereof as may be reserved or appro- 
 priated to pubHc use, or ceded to the United States, 
 which shall hereafter be sold or disposed of, together 
 with the fund denominated the common school fund, 
 shall be and remain a perpetual fund; the interest of 
 which shall be inviolably appropriated and applied to 
 the support of common schools throughout this state. 
 Rates of toll, not less than those agreed to by the canal 
 commissioners, and set forth in their report to the leg- 
 islature of the twelfth of March, one thousand eight 
 hundred and twenty-one, shall be imposed on, and col- 
 lected from, all parts of the navigable communica- 
 tions between the great western and northern lakes and 
 the Atlantic ocean, which now are, or hereafter shall be, 
 made and completed; and the said tolls, together with 
 the duties on the manufacture of all salt, as established 
 by the act of the fifteenth of April, one thousand eight 
 hundred and seventeen, and the duties on goods sold at 
 auction, excepting therefrom the sum of thirty-three 
 thousand, five hundred dollars; otherwise appropriated 
 by the said act, and the amount of the revenue, estab- 
 lished by the act of the legislature of the thirtieth of 
 March, one thousand eight hundred and twenty, in lieu 
 of the tax upon steamboat passengers, shall be and 
 remain inviolably appropriated and applied to the com- 
 pletion of such navigable communications, and to the 
 payment of the interest, and reimbursement of the cap- 
 
The Second Constitution, 1821. 217 
 
 ital, of the money already borrowed, or which hereafter 
 shall be borrowed, to make and complete the same. And 
 neither the rates of toll on the said navigable communi- 
 cations, nor the duties on the manufacture of salt afore- 
 said, nor the duties on goods sold at auction, as estab- 
 lished by the act of the fifteenth of April, one thousand 
 eight hundred and seventeen, nor the amount of the 
 revenue, established by the act of March the thirtieth, 
 one thousand eight hundred and twenty, in lieu of the 
 tax upon steamboat passengers, shall be reduced or di- 
 verted, at any. time before the full and complete pay- 
 ment of the principal and interest of the money borrowed, 
 or to be borrowed, as aforesaid. And the legislature 
 shall never sell or dispose of the salt springs belonging 
 to this state, nor the lands contiguous thereto, which may 
 be necessary, or convenient for their use, nor the said nav- 
 igable communications, or any part or section thereof; 
 but the same shall be and remain the property of this state. 
 
 [New. Const. 1846, art. 9, § i ; 1894, art. 9, § 3. 
 
 A person to whom salt lands were set apart under the Revised 
 Statutes for the purpose of manufacturing salt thereon did not 
 acquire an inheritable interest therein. Newcomb v. Newcomb 
 (iSss), 12 N. Y. 603.] 
 
 § II. [Lotteries prohibited.] — No lottery shall 
 hereafter be authorized in this state; and the legisla- 
 ture shall pass laws to prevent the sale of all lottery tick- 
 ets within this state, except in lotteries already provided 
 for by law. 
 
 [New. Const. 1846, art. I, § 10; 1894, art. i, § 9.] 
 
 § 12. [Indian lands.] — No purchase or contract for 
 the sale of lands in this state, made since the fourteenth 
 day of October, one thousand seven hundred and seventy- 
 five, or which may hereafter be made, of or with the 
 
2i8 Constitutional History of New York. 
 
 Indians in this state, shall be valid, unless made under 
 the authority, and with the consent, of the legislature. 
 
 [Const. 1777, art. 37; 1846, art. i, § 16; 1894, art. i, § 15.] 
 
 § 13. [Common law continued.] — Such parts of the 
 common law and of the acts of the legislature of- the 
 colony of New York as together did form the law of the 
 said colony on the nineteenth day of April, one thousand 
 seven hundred and seventy-five, and the resolutions of 
 the congress of the said colony, and of the convention 
 of the state of New York, in force on the twentieth day 
 of April, one thousand seven hundred and seventy-seven, 
 which have not since expired, or been repealed, or al- 
 tered, and such acts of the legislature of this state as are 
 now in force, shall be and continue the law of this state, 
 subject to such alterations as the legislature shall make 
 concerning the same. But all such parts of the com- 
 mon law, and such of the said acts, or parts thereof, 
 as are repugnant to this Constitution, are hereby abro- 
 gated. 
 
 [Const. 1777, art. 35; 1846, art. i, § 17; 1894, art. i, § 16.] 
 
 § 14. [Royal grants and charters preserved.] — All 
 
 grants of land within this state, made by the King of 
 Great Britain, or persons acting under his authority, 
 after the fourteenth day of October, one thousand seven 
 hundred and seventy-five, shall be null and void; but 
 nothing contained in this Constitution shall affect any 
 grants of land within this state, made by the authority 
 of the said King or his predecessors, or shall annul any 
 charters to bodies politic and corporate, by him or them 
 made, before that day; or shall affect any such grants 
 or charters since made by this state, or by persons act- 
 ing under its authority; or shall impair the obligation 
 
The Second Constitution, 1821. 219 
 
 of any debts contracted by the state, or individuals, or 
 bodies corporate, or any other rights of property, or 
 any suits, actions, rights of action, or other proceedings 
 in courts of justice. 
 
 [Const. 1777, art. 36; 1846, art. i, § 18; 1894, art. i, § 17.] 
 
 ARTICLE VIII. 
 
 Section i. [Constitution, how amended.] — Any 
 
 amendment or amendments to this Constitution may be 
 proposed in the senate or assembly, and if the same shall 
 be agreed to by a majority of the members elected to 
 each of the two houses, such proposed amendment or 
 amendments shall be entered on their journals, with the 
 yeas and nays taken thereon, and referred to the legis- 
 lature then next to be chosen; and shall be published 
 for three months previous to the time of making such 
 choice ; and, if in the legislature next chosen as aforesaid, 
 such proposed amendment or amendments shall be agreed 
 to by two thirds of all the members elected to each house, 
 then it shall be the duty of the legislature to submit such 
 proposed amendment, or amendments to the people, in 
 such manner, and at such time, as the legislature shall pre 
 scribe; and if the people shall approve and ratify sue! 
 amendment or amendments, by a majority of the elect- 
 ors qualified to vote for members of the legislature vot- 
 ing thereon, such amendment or amendments shall be- 
 come part of the Constitution. 
 
 [New. Const. 1846, art. 13, § i ; 1894, art. 14, § i.] 
 
 ARTICLE IX. 
 
 Section i. [Constitution, when to take effect.] — 
 
 This Constitution shall be in force from the last day of 
 December, in the year one thousand eight hundred and 
 twenty-two. But all those parts of the same which 
 
220 Constitutional History of New York, 
 
 relate to the right of suffrage, the division of the state 
 into senate districts, the number of members of the 
 assembly to be elected, in pursuance of this Constitution, 
 the apportionment of members of assembly ; the elections 
 hereby directed to commence on the first Monday of 
 November, in the year one thousand eight hundred and 
 twenty-two, the. continuance of the members of the pres- 
 ent legislature in office until the first day of January, 
 in the year one thousand eight hundred and twenty-three, 
 and the prohibition against authorizing lotteries, the 
 prohibition against appropriating the public moneys or 
 property for local or private purposes, or creating, con- 
 tinuing, altering, or renewing any body politic or cor- 
 porate, without the assent of two thirds of the members 
 elected to each branch of the legislature, — shall be in 
 force, and take effect, from the last day of February 
 next. The members of the present legislature shall, on 
 the first Monday of March next, take and subscribe an 
 oath or affirmation, to support this Constitution, so far 
 as the same shall then be in force. Sheriffs, clei-ks of 
 counties, and coroners, shall be elected at the election 
 hereby directed to commence on the first Monday of No- 
 vember, in the year one thousand eight hundred and 
 twenty-two ; but they shall not enter on the duties of their 
 offices before the first day of January then next follow- 
 ing. The commissions of all persons holding civil of- 
 fices on the last day of December, one thousand eight 
 hundred and twenty-two, shall expire on that day; but 
 the officers then in commission may respectively continue 
 to hold their said offices until new appointments, or elec- 
 tions, shall take place under this Constitution. 
 
 [New. Temporary.] 
 
 § 2. [Existing election laws applicable to first elec- 
 tion.] — The existing laws relative to the manner of 
 
The Second Constitution, 1821. 221 
 
 notifying, holding, and conducting elections, making 
 returns, and canvassing voties, shall be in force, and 
 observed in respect to the elections hereby directed to 
 commence on the first Monday of November, in the year 
 one thousand eight hundred and twenty-two, so far as 
 the same are applicable. And the present legislature 
 shall pass such other and further laws as may be requisite 
 for the execution of the provisions of this Constitution, 
 in respect to elections. 
 
 [Temporary.] 
 
 Done in convention, at the Capitol in the city of 
 Albany, the tenth day of November, in the year one 
 thousand eight hundred and twenty-one, and of the 
 independence of the United States of America, the 
 forty-sixth. In witness whereof, we have hereunto 
 subscribed our names. 
 
 DANIEL D. TOMPKINS, 
 President, and Delegate from the county of Richmond. 
 
 John F. Bacon, 1 c- ^ ■ 
 
 •L o /- (■ Secretaries. 
 
 Samuel S. Gardiner,^ 
 
222 Constitutional History of New York. 
 
 AMENDMENTS FROM 182 1 TO 1846. 
 
 [See chapter on amendments to the second Constitution, vol. 2.] 
 
 1826. [Qualifications of voters.] — That so much of 
 the first section of the second article of the Constitution 
 as prescribes the qualifications of voters, other than 
 persons of color, be and the same is hereby abolished, 
 and that the following be substituted in the place thereof : 
 
 Every male citizen of the age of twenty-one years, 
 who shall have been an inhabitant of this state one 
 year next preceding any election, and for the last six 
 months a resident of the county where he may offer his 
 vote, shall be entitled to vote in the town or ward where 
 he actually resides, and not elsewhere, for all officers 
 that now are or hereafter may be elective by the people. 
 
 [Colored voters were not affected by this amendment. See Const. 
 1777, art. 7; 1846, art. 2, § i ; Am. 1874; 1894, art. 2, § i ; 15th Amend- 
 ment. The index should also be consulted for further references.] 
 
 1826. [Justices of the peace, how^ chosen and classi- 
 'fied.] — That the people of this state, in their several 
 towns, shall, at their annual election, and in such 
 manner as the legislature shall direct, elect by ballot 
 their justices of the peace; and the justices so elected in 
 any town shall immediately thereafter meet together, and, 
 in presence of the supervisor and town clerk of the 
 said town, be divided by lot into four classes, of one in 
 each class, and be numbered one, two, three, and four; 
 and the office of number one shall expire at the end of 
 the first year; of number two at the end of the second 
 year; of number three at the end of the third year; 
 and of number four at the end of the fourth year, in 
 order that one justice may thereafter be annually elected; 
 
Amendments from 1821 to 1846. 223 
 
 and that so much of the seventh section of the fourth 
 article of the Constitution of this state as is inconsistent 
 with this amendment, be abrogated. 
 
 [Const. 1846, 1894, art. 10, § 2; 1894, art. 6, § 17. 
 
 In Ex parte Quackenhush (1842), 2 Hill, 369, it was held that the 
 legislature had no power to provide for the election of a justice of 
 the peace except at an annual town meeting. This rule has since 
 been changed; see Const. 1894, art. 6, § 17, which authorizes the 
 election of justices of the peace not only at annual town meetings, 
 but "at such other time and in such manner as the legislature may 
 direct."] 
 
 1833. [Election of mayor in New York.] — At the 
 
 end of the tenth section of the fourth article of the said 
 Constitution, add the following words : "Except in the 
 city of New York, in which the mayor shall be 
 chosen annually by the electors thereof qualified to vote 
 for the other charter officers of the said city, and at the 
 time of the election of such officers." 
 
 [Const. 1777, art. 3; 1821, art. 4, § 10; Am. 1839; 1846 and 1894, art. 
 10, § 2; 1894, art. 12, § 3.] 
 
 1833. [Duties on salt.] — That the duties on the 
 manufacture of salt, as established by the act of the 
 fifteenth of April, one thousand eight hundred and 
 seventeen, and by the tenth section of the seventh arti- 
 cle of the Constitution of this state, may at any time 
 hereafter be reduced by an act of the legislature of this 
 state ; but shall not, while the same is appropriated and 
 pledged by the said section, be reduced below the sum 
 of six cents upon each and every bushel; and the said 
 duties shall remain inviolably appropriated and applied 
 as is provided by the said tenth section ; and that so much 
 of the said tenth section of the seventh article of the Con- 
 stitution of this state as is inconsistent with this amend- 
 ment be abrogated. 
 
 [Const. 1821, art. 7. § 10; Am. 1835.] 
 
224 Constitutional History of New York. 
 
 1835. [Canals; duties on salt; auction sales.] — 
 
 Whenever a sufficient amount of money shall be collected 
 and safely invested for the reimbursement of such part 
 as may tlaen be unpaid of the money borrowed for the 
 construction of the Erie and Champlain canals, the tenth 
 section of the seventh article of the Constitution of this 
 state, so far as it relates to the amount of duties on the 
 manufacture of salt, and the amount of duties on goods 
 sold at auction, shall cease and determine; and there- 
 after the duties on goods sold at auction, excepting there- 
 from the sum of thirty-three thousand five hundred dol- 
 lars, otherwise appropriated by the act of the fifteenth of 
 April, one thousand eight hundred and seventeen, and 
 the duties on the manufacture of salt, shall be restored 
 to the general fund. 
 
 [Const. 1821, art. 7, § 10; Am. 1833.] 
 
 1839. [Election of mayor.] — Mayors of the several 
 cities in this state may be elected annually by the male 
 inhabitants entitled to vote for members of the common 
 council of such cities respectively, in such manner as the 
 legislature shall by law provide ; and the legislature may, 
 from time to time, make such provision by law for the 
 election of any one or more of such mayors; but until 
 such provision be made by law, such mayor (excepting 
 the mayor of the city of New York) shall be appointed 
 in the manner now prescribed by the Constitution of this 
 state; and so much of the tenth section of article fourth 
 of the Constitution of this state as is inconsistent with 
 this amendment is hereby abrogated. 
 
 [Const. 1777, art. 23; 1821, art. 4, § 10; Am. 1833; 1846 and 1894, 
 art. ID, § 2 ; 1894, art. 12, § 3.] 
 
 1845. [Procedure on removal of judicial officers.] 
 
 — No judicial officer shall be removed by the joint 
 
Amendments from 1821 to 1846. 225 
 
 resolution of the two houses of the legislature, or 
 by the senate, on the recommendation of the governor, 
 unless the cause of such removal shall be entered on the 
 journal of both houses, or of the senate, as the case may- 
 be; and such officer against whom the legislature or 
 the senate may be about to proceed shall be served 
 with notice thereof, accompanied with a copy of the 
 causes alleged for his removal, at least twenty days 
 before the day on which either house shall act there- 
 upon, and shall have an opportunity to be heard in 
 his defense before any question shall be taken upon 
 such removal; and the yeas and nays shall be entered 
 upon the journals of the senate, or houses, as the case 
 may be. 
 
 [Const. 1821, art. i, § 13; 1846, art. 6, § 11; Judiciary Articles of 
 1869, art. 6, § 11; 1894, art. 6, § 11.] 
 
 1845. [Abrogating property qualifications to 
 office.] — No property qualification shall be required 
 to render a person eligible to or capable of holding 
 any office or public trust in this state. 
 
 [Const. 1777, art. 10, 17; 1821, art. i, § 2, art. 3, § 2. See note on 
 this section in the chapter on the Amendments to the Constitution 
 of 1821, vol. 2.] 
 
 Vol. I. Const. Hist.— 15. 
 
226 Constitutional History of New York. 
 
 THE THIRD CONSTITUTION, 1846. 
 
 [This Constitution was framed by a convention which met in Al- 
 bany on the 1st day of June, 1846, and adjourned, October 9, 1846. 
 It was submitted tb the people and approved at an election held No- 
 vember 3, 1846. A history of this Constitution will be found in the 
 chapter on the Convention of 1846. The constitutional changes made 
 between 1846 and 1894 follow under a separate head. Judicial de- 
 cisions relating to provisions not continued in the Constitution of 
 1894 are noted here under the appropriate sections.] 
 
 WEj the people of the state of New York, grateful to 
 Almighty God for our freedom, in order to secure its 
 blessings, do establish this constitution. 
 
 ARTICLE I. 
 
 Section i. [Rights of citizens.] — No member of 
 this state shall be disfranchised or deprived of any of 
 the rights or privileges secured to any citizen thereof, 
 unless by the law of the land or the judgment of his 
 peers. 
 
 [Magna Charta, chap. 39; Const. 1777, art. 13; 1821, art. 7, i i; 
 1, 1894, art. I, § I.] 
 
 § 2. [Trial by jury preserved.] — The trial by jury, 
 in all cases in which it has been heretofore used, shall 
 remain inviolate forever. But a jury trial may be waived 
 by the parties in all civil cases, in the manner to be pre- 
 scribed by law. 
 
 [Const. 1777, art. 41 ; 1821, art. 7, § 2 ; 1894, art. i, § 2.] 
 
 § 3. [Religious liberty.] — The free exercise and en- 
 joyment of religious profession and worship, without 
 discrimination or preference, shall forever be allowed 
 in this state, to all -mankind ; and no person shall be 
 
The Third Constitution, 1846. 227 
 
 rendered incompetent to be a witness on account of his 
 opinions on matters of religious belief; but the liberty 
 of conscience hereby secured shall not be so construed as 
 to excuse acts of licentiousness, or justify practices in- 
 consistent with the peace or safety of this state. 
 
 [Const. 1777, art. 38; 1821, art. 7, § 3; 1894, art. i, § 3.] 
 
 § 4. [When writ of habeas corpus not to be sus- 
 pended.] — The privilege of the writ of habeas corpus 
 shall not be suspended, unless when, in cases of rebellion 
 or invasion, the public safety may require its suspension. 
 
 [Const. 1821, art. 7, i 6; 1894, art. i, § 4.] 
 
 § 5. [Excessive bail, fines, and punishment prohib- 
 ited; rights of witness.] — Excessive bail shall not be 
 required, nor excessive fines imposed, nor shall cruel and 
 unusual punishments be inflicted, nor shall witnesses be 
 unreasonably detained. 
 
 [New. Const. 1894, art. I, § 5.] 
 
 § 6. [Rights of accused in criminal cases; taking 
 private property for public use.] — No person shall be 
 held to answer for a capital or otherwise infamous crime 
 (except in cases of impeachment, and in cases of militia, 
 when in actual service; and the land and naval forces in 
 time of war, or which this state may keep with the con- 
 sent of Congress in time of peace; and in cases of petit 
 larceny, under the regulation of the legislature), unless 
 on presentment or indictment of a grand jury; and in 
 any trial in any court whatever, the party accused shall 
 be allowed to appear and defend in person and with 
 counsel, as in civil actions. No person shall be subject 
 to be twice put in jeopardy for the same offense; nor 
 sha51 he be compelled, in any criminal case, to be a wit- 
 
228 Constitutional History of New York. 
 
 ness against himself; nor be deprived of life, liberty, or 
 property, without due process of law; nor shall pri- 
 vate property be taken for public use, without just com- 
 pensation. 
 
 [Const. 1821, art. 7, ^ 7; 1894. art. i, § 6.] 
 
 § 7. [Compensation for private property, how as- 
 certained; private roads.] — When private property 
 shall be taken for any public use, the compensation to be 
 made therefor, when such compensation is not made by 
 the state, shall be ascertained by a jury, or by not less 
 than three commissioners appointed by a court of rec- 
 ord, as shall be prescribed by law. Private roads may 
 be opened in the manner to be prescribed by law; but 
 in every case the necessity of the road, and the amount 
 of all damage to be sustained by the opening thereof, shall 
 be first determined by a jury of freeholders, and such 
 amount, together with the expenses of the proceeding, 
 shall be paid by the person to be benefited. 
 
 [New. Const. 1894 art. I, § 7.] 
 
 § 8. [Freedom of speech and press ; evidence in 
 libel cases.] — Every citizen may freely speak, write, 
 and publish his sentiments on all subjects, being respon- 
 sible for the abuse of that right; and no law shall be 
 passed to restrain or abridge the liberty of speech, or of 
 the press. In all criminal prosecutions or indictments 
 for libels, the truth may be given in evidence to the 
 jury; and if it shall appear to the jury that the matter 
 charged as libelous is true, and was published with good 
 motives, and for justifiable ends, the party shall be 
 acquitted; and the jury shall have the right to deter- 
 mine the law and the fact. 
 
 [Const. 1821, art. 7, § 8; 1894, art. i, § 8.] 
 
The Third Constitution, 1846. 22y 
 
 § 9. [Two-thirds bills.] — The assent of two thirds 
 of the members elected to each branch of the legisla- 
 ture shall be requisite to every bill appropriating the 
 public moneys or property for local or private purposes. 
 
 [Const. 1821, art. 7, § 9; 1894, art. 3, § 20.] 
 
 § ID. [Right to assemble and petition; divorces; 
 lotteries prohibited.] — No law shall be passed abridg- 
 ing the right of the people peaceably to assemble, and to 
 petition the government, or any department thereof; nor 
 shall any divorce be granted otherwise than by due ju- 
 dicial proceedings; nor shall any lottery hereafter be 
 authorized, or any sale of lottery tickets allowed within 
 this state. 
 
 [New, except that lotteries were prohibited by Const. 1821, art 7, 
 § 11; 1894, art. I, § 9.] 
 
 § II. [Sovereignty in real property; escheats.] — 
 
 The people of this state, in their right of sovereignty, are 
 deemed to possess the original and ultimate property in 
 and to all lands within the jurisdiction of the state ; and 
 all lands, the title to which shall fail, from a defect of 
 heirs, shall revert or escheat to the people. 
 
 [New. Const. 1894, art. I, § 10.] 
 
 § 12. [Feudal tenures abolished.]-^All feudal ten- 
 ures of every description, with all their incidents, are 
 declared to be abolished, saving, however, all rents 
 and services certain, which at any time heretofore have 
 been lawfully created or reserved. 
 
 [New. Const. 1894, art. I, § 11.] 
 
 § 13. [Absolute ownership of estates.] — All lands 
 within this state are declared to be allodial, so that, sub- 
 
230 Constitutional History of New York. 
 
 ject only to the liability to escheat, the entire and abso- 
 lute property is vested in the owners, according to the 
 nature of their respective estates. 
 
 [New. Const. 1894, art. i, § 12.] 
 
 § 14. [Leases of agricultural lands limited.] — No 
 lease or grant of agricultural land, for a longer period 
 than twelve years, hereafter made, in which shall be 
 reserved any rent or service of any kind, shall be valid. 
 
 [New. Const. 1894, art. i, § 13.] 
 
 § 15. [Restraints on alienation prohibited.] — All 
 fines, quarter sales, or other like restraints upon aliena- 
 tions, reserved in any grant of land hereafter to be made, 
 shall be void. 
 
 [New. Const. 1894, art. i, § 14.] 
 
 § 16. [Indian lands.] — No purchase or contract for 
 the sale of lands in this state, made since the fourteenth 
 day of October, one thousand seven hundred and seventy- 
 five, or which may hereafter be made, of or with 
 the Indians, shall be valid unless made under the 
 authority and with the consent of the legislature. 
 
 [Const. 1777, art. 37; 1821, art. 7, § 12; 1894, art. i, § iS-] 
 
 § 17. [Common law continued.] — Such parts of the 
 common law, and of the acts of the legislature of the 
 colony of New York, as together did form the law of 
 the said colony on the nineteenth day of April, one thou- 
 sand seven hundred and seventy-five, and the resolu- 
 tions of the congress of the said colony, and of the con- 
 vention of the state of New York, in force on the 
 twentieth day of April, one thousand seven hundred and 
 
The Third Constitution, 1846. 231 
 
 seventy-seven, which have not since expired, or been 
 repealed, or altered, and such acts of the legislature of 
 this state as are now in force, shall be and continue the 
 law of this state, subject to such alterations as the leg- 
 islature shall make concerning the same. But all such 
 parts of the common law, and such of the said acts 
 or parts thereof as are repugnant to this Constitution, 
 are hereby abrogated; and the legislature, at its first 
 session after the adoption of this Constitution, shall 
 appoint three commissioners, whose duty it shall be to 
 reduce into a written and systematic code the whole 
 body of the .law of this state, or so much and such parts 
 thereof as to the said commissioners shall seem prac- 
 ticable and expedient. And the said commissioners shall 
 specify such alterations and amendments therein as 
 they shall deem proper, and they shall at all times make 
 reports of their proceedings to the legislature, when 
 called upon to do so; and the legislature shall pass laws 
 regulating the tenure of oiSce, the filling of vacancies 
 therein, and the compensation of the said commission- 
 ers; and shall also provide for the publication of the 
 said code, prior to its being presented to the legislature 
 for adoption. 
 
 [Const. 1777, art. 35; 1821, art. 7, § 13; 1894, art. i, § 16.] 
 
 § 18. [Royal grants and charters preserved.] — All 
 
 grants of land within this state, made by the King of 
 Great Britain, or persons acting under his authority, 
 after the fourteenth day of October, one thousand seven 
 hundred and seventy-five, shall be null and void ; but noth- 
 ing contained in this Constitution shall affect any grants 
 of land within this state, made by the authority of 
 the said King, or his predecessors, or shall annul any 
 charters to bodies politic and corporate, by him or them 
 made, before that day ; or shall affect any such grants 
 
232 Constitutional History of New York. 
 
 or charters since made by this state, or by persons act- 
 ing under its authority, or shall impair the obligation 
 of any debts contracted by this state, or individuals, or 
 bodies corporate, or any other rights of property, or 
 any suits, actions, rights of action, or other proceedings 
 in courts of justice. 
 
 [Const. 1777, art. 36; 1821, art. 7, § 14; 1894, art. I, § 17.] 
 
 ARTICLE II. 
 
 Section i. [Qualifications of voters.] — Every male 
 citizen of the age of twenty-one years, who shall have 
 been a citizen for ten days, and an inhabitant of this 
 state one year next preceding any election, and for the 
 last four months a resident of the county where he may 
 offer his vote, shall be entitled to vote at such election 
 in the election district of which he shall at the time be 
 a resident, and not elsewhere, for all officers that now 
 are or hereafter may be elected by the people; but such 
 citizen shall have been, for thirty days next preceding 
 the election, a resident of the district from which the 
 officer is to be chosen for whom he offers his vote. But 
 no man of color, unless he shall have been for three 
 years a citizfen of this state, and for one year next pre- 
 ceding any election shall have been seized and pos- 
 sessed of a freehold estate of the value of two hundred 
 and fifty dollars, over and above all debts and incum- 
 brances charged thereon, and shall have been actually 
 rated and paid a tax thereon, shall be entitled to vote 
 at such election. And no person of color shall be sub- 
 ject to direct taxation unless he shall be seized and 
 possessed of such real estate as aforesaid. 
 
 [Const. 1777, art. 7 ; 1821, art. 2, § i ; 1894, art. 2, § i. This sec- 
 tion was amended in 1864 and in 1874.] 
 
The Third Constitution, 1846. 233 
 
 § 2. [Exclusion from right of suffrage.] — ^Laws 
 may be passed, excluding from the right of suffrage 
 all persons who have been or may be convicted of 
 bribery, larceny, or of any infamous crime; and for 
 depriving every person who shall make, or become 
 directly or indirectly interested in, any bet or wager 
 depending upon the result of any election, from the right 
 to vote at such election. 
 
 [Const. 1821, art. 2, § 2; Am. 1874; 1894, art. 2, § 2.] 
 
 § 3. [Right of suffrage not affected by certain oc- 
 cupations and conditions.] — For the purpose of vot- 
 ing, no person shall be deemed to have gained or lost a 
 residence by reason of his presence or absence, while 
 employed in the service of the United States; nor while 
 engaged in the navigation of the waters of this state,, 
 or of the United States, or of the high seas; nor while 
 a student of any seminary of learning; nor while kept 
 at any almshouse or other asylum, at public expense^ 
 nor while confined in any public prison. 
 
 [New. Const. 1894, art. 2, § 3.] 
 
 § 4. [Registration of voters.] — Laws shall be made 
 for ascertaining, by proper proofs, the citizens who shall 
 be entitled to the right of suffrage hereby established. 
 
 [Const. 1821, art. 2, § 3; 1894, art. 2, § 4.] 
 
 § 5. [Elections to be by ballot.] — All elections by 
 the citizens shall be by ballot, except for such town offi- 
 cers as may by law be directed to be otherwise chosen. 
 
 [Const. 1777, art. 6; 1821, art. 2, i 4; 1894, art. 2, § 5.] 
 
234 Constitutional History of New York. 
 
 ARTICLE III. 
 
 Section i. [Legislative power.] — The legislative 
 power of this state shall be vested in a senate and 
 
 assembly. 
 
 [Const. 1777, art. 2 ; 1821, art. I, § I ; 1894, art. 3, § i.] 
 
 § 2. [Senate and assembly, how constituted.] — The 
 
 senate shall consist of thirty-two members, and the 
 senators shall be chosen for two years. 
 
 The assembly shall consist of one hundred and twenty- 
 eight members, who shall be annually elected. 
 
 [Assembly, Const. 1777, art. 4; Am. 1801, § i; 1821, art. i, § 2; 
 1894, art. 3, § 2. Senate, Const. 1777, art. 10; Am. 1801, § 3; 1821, 
 art. I, § 2; 1894, art. 3, § 2.] 
 
 § 3. [Senate districts.] — The state shall be divided 
 into thirty-two districts, to be called senate districts, 
 each of which shall choose one senator. The districts 
 shall be numbered from one to thirty-two, inclusive. 
 
 District number one (i) shall consist of the counties 
 of Suffolk, Richmond, and Queens. 
 
 District number two (2) shall consist of the county of 
 Kings. 
 
 District number three (3), number four (4), number 
 live (5), and number six (6), shall consist of the city and 
 county of New York; and the board of supervisors of 
 said city and county shall, on or before the first day of 
 May, one thousand eight hundred and forty-seven, divide 
 the said city and county into the number of senate dis- 
 tricts to which it is entitled, as near as may be of an 
 equal number of inhabitants, excluding aliens and per- 
 sons of color n,ot taxed, and consisting of convenient 
 and contiguous territory; and no assembly district shall 
 be divided in the formation of a senate district. The 
 
The Third Constitution, 1846. 235 
 
 board of supervisors, when they shall have completed 
 such division, shall cause certificates thereof, stating the 
 number and boundaries of each district and the popula- 
 tion thereof, to be filed in the office of the secretary of 
 state, and of the clerk of the said city and county. 
 
 District number seven (7) shall consist of the counties 
 of Westchester, Putnam, and Rockland. 
 
 District number eight (8) shall consist of the counties 
 of Dutchess and Columbia. 
 
 District number nine (9) shall consist of the counties 
 of Orange and Sullivan. 
 
 District number ten (10) shall consist of the counties 
 of Ulster and Greene. 
 
 District number eleven (11) shall consist of the coun- 
 ties of Albany and Schenectady. 
 
 District number twelve (12) shall consist of the county 
 of Rensselaer. 
 
 District number thirteen (13) shall consist of the 
 counties of Washington and Saratoga. 
 
 District number fourteen (14) shall consist of the 
 counties of Warren, Essex, and Clinton. 
 
 District number fifteen (15) shall consist of the 
 counties of St. Lawrence and Franklin. 
 
 District number sixteen (16) shall consist of the 
 counties of Herkimer, Hamilton, Fulton, and Montgom- 
 ery. 
 
 District number seventeen (17) shall consist of the 
 counties of Schoharie and Delaware. 
 
 District number eighteen (18) shall consist of the 
 counties of Otsego and Chenango. 
 
 District number nineteen (19) shall consist of the 
 county of Oneida. 
 
 District number twenty (20) shall consist of the 
 counties of Madison and Oswego. 
 
236 Constitutional History of New York. 
 
 District number twenty-one (21) shall consist of the 
 counties of Jefferson and Lewis. 
 
 District number twenty-two (22) shall consist of the 
 county of Onondaga. 
 
 District number twenty-three (23) shall consist of the 
 counties of Cortland, Broome, and Tioga. 
 
 District number twenty-four (24) shall consist of the 
 counties of Cayuga and Wayne. 
 
 District number twenty-five (25) shall consist of the 
 counties of Tompkins, Seneca, and Yates. 
 
 District number twenty-six (26) shall consist of the 
 counties of Steuben and Chemung. 
 
 District number twenty-seven (27) shall consist of the 
 county of Monroe. 
 
 District number twenty-eight (28) shall consist of the 
 counties of Orleans, Genesee, and Niagara. 
 
 District number twenty-nine (29) shall consist of the 
 counties of Ontario and Livingston. 
 
 District number thirty (30) shall consist of the coun- 
 ties of Allegany and Wyoming. 
 
 District number thirty-one (31) shall consist of the 
 county of Erie. 
 
 District number thirty-two (32) shall consist of the 
 counties of Chautauqua and Cattaraugus. 
 
 [Const. 1777, art. 12; 1821, art. i, § S; 1894, art. 3, § 3.] 
 
 §4. [Census; reapportionment of senators.] — An 
 
 enumeration of the inhabitants of the state shall be 
 taken, under the direction of the legislature, in the year 
 one thousand eight hundred and fifty-five, and at the 
 end of every ten years thereafter; and the said districts 
 shall be so altered by the legislature, at the first session 
 after the return of every enumeration, that each senate 
 district shall contain, as nearly as may be, an equal num- 
 ber of inhabitants, excluding aliens, and persons of color 
 
The Third Constitution, 1846. 237 
 
 not taxed; and shall remain unaltered until the return 
 of another enumeration, and shall at all times consist 
 of contiguous territory; and no county shall be divided 
 in the formation of a senate district, except such county 
 shall be equitably entitled to two or more senators. 
 
 [Const. 1777, art. 5; 1821, art. i, § 6; 1894, art. 3, §§ 4, 5.] 
 
 § 5. [Apportionment of assembly.] — The mem- 
 bers of assembly shall be apportioned among the sev- 
 eral counties of this state, by the legislature, as nearly as 
 may be, according to the number of their respective in- 
 habitants, excluding aliens, and persons of color not 
 taxed, and shall be chosen by single districts. The sev- 
 eral boards of supervisors in such counties of this state 
 as are now entitled to more than one member of assembly 
 shall assemble on the first Tuesday of January next, 
 and divide their respective counties into assembly dis- 
 tricts, equal to the number of members of assembly to 
 which such counties are now severally entitled by law, 
 and shall cause to be filed in the offices of the secretary 
 of state and the clerks of their respective counties, a. 
 description of such assembly districts, specifying the 
 number of each district and the population thereof, 
 according to the last preceding state enumeration, as near 
 as can be ascertained. Each assembly district shall 
 contain, as nearly as may be, an equal number of inhab- 
 itants, excluding aliens, and persons of color not taxed, 
 and shall consist of convenient and contiguous terri- 
 tory; but no town shall be divided in the formation of 
 assembly districts. 
 
 The legislature, at its first session after the return of 
 every enumeration, shall reapportion the members of 
 assembly among the several counties of this state, in man- 
 ner aforesaid ; and the boards of supervisors in such coun- 
 ties as may be entitled, under such reapportionment, to 
 
238 Constitutional History of New York. 
 
 more than one member, shall assemble at such time as 
 the legislature making such reapportionment shall pre- 
 scribe, and divide such counties into assembly districts, 
 in the manner herein directed; and the apportionment 
 and districts so to be made shall remain unaltered until 
 another enumeration shall be taken, under the provisions 
 of the preceding section. 
 
 Every county heretofore established and separately 
 organized, except the county of Hamilton, shall always 
 be entitled to one member of the assembly, and no new 
 county shall hereafter be erected, unless its population 
 shall entitle it to a member. The county of Hamilton 
 shall elect with the county of Fulton, until the popula- 
 tion of the county of Hamilton shall, according to the 
 ratio, be entitled to a member. 
 
 [Const. 1777, art. 5; 1821, art. i, § 7; Am. 1874; 1894, art. 3, §§ 4, 
 S.] 
 
 § 6. [Compensation of members.] — The members 
 of the legislature shall receive for their services a sum 
 not exceeding three dollars per day, from the commence- 
 ment of the session, but such pay shall not exceed in the 
 aggregate three hundred dollars per. diem allowance, 
 except in proceedings for impeachment. The limitation 
 as to the aggregate compensation shall not take effect 
 until the year one thousand eight hundred and forty- 
 eight. When convened in extra session by the governor, 
 they shall receive three dollars per day. They shall 
 also receive the sum of one dollar for every ten miles 
 they shall travel, in going to and returning from their 
 place of meeting on the most usual route. 
 
 The speaker of the assembly shall, in virtue of his 
 office, receive an additional compensation equal to one- 
 third of his per diem allowance as a member. 
 
 [Const. 1821, art. i, § 9; Am. 1874; 1894, art. 3, § 6.] 
 
The Third Constitution, 1846. 239 
 
 § 7. [Members not to receive certain civil appoint- 
 ments.] — No member of the legislature shall receive 
 any civil appointment within this state, or to the Senate 
 of the United States, from the governor, the governor 
 and senate, or from the legislature, during the term for 
 which he shall have been elected; and all such appoint- 
 ments, and all votes given for any such member, for any 
 such office or appointment, shall be void. 
 
 [Const. 1821, art. i, § 10; Am. 1874; 1894, art. 3, § 7.] 
 
 § 8. [Certain Federal officers disqualified as mem- 
 bers.] — No person being a member of Congress, or 
 holding any judicial or military office tinder the United 
 States, shall hold a seat in the legislature; and if any 
 person shall, after his election as a member of the leg- 
 islature, be elected to Congress, or appointed to any 
 office, civil or military, under the government of the 
 United States, his acceptance thereof shall vacate his seat. 
 
 [Const. 1821, art. I, § 11; Am. 1874; 1894, art. 3, § 8.] 
 
 § 9. [Time of elections.] — The elections of senators 
 and members of assembly, pursuant to the provisions of 
 this Constitution, shall be held on the Tuesday suc- 
 ceeding the first Monday of November, unless otherwise 
 directed by the legislature. 
 
 [Const. 1821, art. I, § 15 ; 1894, art. 3, § 9.] 
 
 § 10. [Quorum; special powers of each house.] — 
 
 A majority of each house shall constitute a quorum to 
 do business. Each house shall determine the rules of 
 its own proceedings and be the judge of the elections, 
 returns, and qualifications of its own members; shall 
 choose its own officers; and the senate shall choose a 
 
240 Constitutional History of New York. 
 
 temporary president when the lieutenant governor shall 
 not attend as president, or shall act as governor. 
 
 [Const. 1777, art. 9 ; 1821, art. i, § 3 ; 1894, art. 3, § 10.] 
 
 § II. [Journals; public sessions; adjournments.] — 
 Each house shall keep a journal of its proceedings and 
 publish the same, except such parts as may require se- 
 crecy. The doors of each house shall be kept open, 
 except when the public welfare shall require secrecy. 
 Neither house shall, without the consent of the other, 
 adjourn for more than two days. 
 
 [Const. 1777, art. 15; 1821, art. i, § 4; 1894, art. 3, § 11.] 
 
 § 12. [Privileges of members.] — For any speech or 
 debate in either house of the legislature the members 
 shall not be questioned in any other place. 
 
 [New. Const. 1894, art. 3, § 2.] 
 
 § 13. [Bills may originate in either house.] — Any 
 
 bill may originate in either house of the legislature, and 
 all bills passed by one house may be amended by the 
 other. 
 
 [Const. 1821, art. I, § 8 ; 1894, art. 3, § 13.] 
 
 § 14. [Enacting clause.] — The enacting clause of 
 all bills shall be "The People of the state of New York, 
 represented in senate and assembly, do enact as follows," 
 and no law shall be enacted except by bill. 
 
 [Const. 1777, art. 31 ; 1894, art. 3, § 14.] 
 
 § 15. [Manner of passing bills.] — No bill shall be 
 passed unless by the assent of a majority of all the mem- 
 bers elected to each branch of the legislature, and the 
 
The Third Constitution, 1846. 241 
 
 question upon the final passage shall be taken immedi- 
 ately upon its last reading, and the yeas and nays entered 
 on the journal. 
 
 [New. Const. 1894, art. 3, § 15.] 
 
 § 16. [Private and local bills limited to one sub- 
 ject.] — No private or local bill, which may be passed 
 by the legislature, shall embrace more than one subject, 
 and that shall be expressed in the title. 
 
 [New. Const. 1894, art. 3, i 16.] 
 
 § 17. [Boards of supervisors may be vested with 
 legislative powers.] — The legislature may confer upon 
 the boards of supervisors of the several counties of the 
 state such further powers of local legislation and ad- 
 ministration as they shall, from time to time, prescribe. 
 
 [New. Am. 1874; Const. 1894, art. 3, i 27.] 
 ARTICLE IV. 
 
 Section i. [Governor and lieutenant governor; 
 term of office.] — ^The executive power shall be vested 
 in a governor, who shall hold his office for two years ; a 
 lieutenant governor shall be chosen at the same time and 
 for the same term. - 
 
 [Const. 1777, arts. 17, 20; 1821, art. 3, § i; Am. 1874; 1894, art. 4, 
 §1.] 
 
 § 2. [Qualifications of governor.] — No person, ex- 
 cept a citizen of the United States, shall be eligible to the 
 office of governor, nor shall any person be eligible to 
 that office who shall not have attained the age of thirty 
 years, and who shall not have been, five years next pre- 
 ceding his election, a resident within this state. 
 
 [Const. 1777, art. 17; 1821, art. 3, § 2; Am. 1874; 1894, art. 4, § 2.] 
 Vol. I. Const. Hist. — 16. 
 
242 Constitutional History of New York. 
 
 § 3. [Election of governor and lieutenant gov- 
 ernor.] — The governor and lieutenant governor shall 
 be elected at the times and places of choosing members 
 of the assembly. The persons respectively having the 
 highest number of votes for governor and lieutenant 
 governor shall be elected; but in case two or more shall 
 have an equal and the highest number of votes for gov- 
 ernor, or for lieutenant governor, the two houses of 
 the legislature, at its next annual session, shall forth- 
 with, by joint ballot, choose one of the said persons so 
 having an equal and the highest number of votes for 
 governor, or lieutenant governor. 
 
 [Const. 1777, art. 17; 1821, art. 3, § 3; 1894, art. 4, § 3.] 
 
 § 4. [Governor's general powers.] — The governor 
 shall be commander-in-chief of the military and naval 
 forces of the state. He shall have power to convene the 
 legislature (or the senate only) on extraordinary occa- 
 sions. He shall communicate by message to the legis- 
 lature, at every session, the condition of the state, and 
 recommend such matters to them as he shall judge 
 expedient. He shall transact all necessary business 
 with the officers of government, civil and military. 
 He shall expedite all such measures as may be resolved 
 upon by the legislature, and shall take care that 
 the laws are faithfully executed. He shall, at stated 
 times, receive for his services a compensation, to be es- 
 tablished by law, which shall neither be increased nor 
 diminished after his election, or during his continuance 
 in office. 
 
 [Const. 1777, art. 18; 1821, art. 3; § 4; Am. 1874; 1894, art. 4, § 4.] 
 
 § 5. [Governor may grant pardons and reprieves.] 
 
 — The governor shall have the power to grant re- 
 
The Third Constitution, 1846. 243 
 
 prieves, commutations, and pardons after conviction, 
 for all offenses except treason and cases of impeach- 
 ment, upon such conditions, and with such restrictions 
 and limitations, as he may think proper, subject to such 
 regulation as may be provided by law relative to the 
 manner of applying for pardons. Upon conviction of 
 treason, he shall have power to suspend the execution 
 of the sentence until the case shall be reported to the 
 legislature at its next meeting, when the legislature shall 
 either pardon or commute the sentence, direct the 
 execution of the sentence, or grant a further reprieve. 
 He shall annually communicate to the legislature each 
 case of reprieve, commutation, or pardon granted, stat- 
 ing the name of the convict, the crime of which he was 
 convicted, the sentence and its date, and the date of the 
 commutation, pardon, or reprieve. 
 
 [Const. 1777, art. 18 ; 1821, art. 3, § 5 ; 1894, art. 4, § S-] 
 
 § 6. [When lieutenant governor to act as gov- 
 ernor.] — In case of the impeachment of the governor, 
 or his removal from office, death, inability to discharge 
 the powers and duties of the said office, resignation, or 
 absence from the state, the powers and duties of the 
 office shall devolve upon the lieutenant governor for 
 the residue of the term, or until the disability shall cease. 
 But when the governor shall, with the consent of the 
 legislature, be out of the state in time of war, at the head 
 of a military force thereof, he shall continue commander- 
 in-chief of all the military force of the state. 
 
 [Const. 1777, art. 20; 1821, art. 3, § 6; 1894, art. 4, § 6.] 
 
 § 7, [Qualifications of lieutenant governor; when 
 president pro tern, to act as governor.] — The lieuten- 
 ant governor shall possess the same qualifications of 
 
244 Constitutional History of New York. 
 
 eligibility for office as the governor. He shall be presi- 
 dent of the senate, but shall have only a casting vote 
 therein. If, during a vacancy of the office of governor, 
 the lieutenant governor shall be impeached, displaced, 
 resign, die, or become incapable of performing the duties 
 of his office, or he be absent from the state, the presi- 
 dent of the senate shall act as governor until the vacancy 
 be filled, or the disability shall cease. 
 
 [Const. 1777, art. 20; 1821, art. 3, § 7; 1894, art. 4, § 7.] 
 
 W 
 
 § 8. [Lieutenant governor's compensation.] — The 
 
 lieutenant governor shall, while acting as such, receive 
 •a compensation which shall be fixed by law, and which 
 shall not be increased or diminished during his con- 
 tinuance in office. 
 
 [New. Am. 1874; Const. 1894, art. 4, § 8.] 
 
 § 9. [Legislature to present bills to governor for 
 his action.] — Every bill which shall have passed the 
 senate and assembly shall, before it becomes a law, be 
 presented to the governor; if he approve he shall sign 
 it; but if not, he shall return it with his objections to 
 that house in which it shall have originated; who shall 
 enter the objections at large on their journal, and pro- 
 ceed to reconsider it. If, after such reconsideration, 
 two thirds of the members present shall agree to pass 
 the bill, it shall be sent, together with the objections, to 
 the other house, by which it shall likewise be reconsid- 
 ered ; and if approved by two thirds' of all the members 
 present, it shall become a law, notwithstanding the ob- 
 jections of the governor. But in all such cases, the votes 
 of both houses shall be determined by ayes and nays, and 
 the names of the members voting for and against the 
 bill shall be entered on the journal of each house, re- 
 
The Third Constitution, 1846. 245 
 
 spectively. If any bill shall not be returned by the gov- 
 ernor within ten days (Sundays excepted) after it shall 
 have been presented to him, the same shall be a 
 law, in like manner as if he had signed it, unless the 
 legislature shall, by their adjoui'nment, prevent its re- 
 turn ; in which case it shall not be a law. 
 
 [Const. 1777, art. 3; 1821, art. i, § 12; Am. 1874; 1894, art, 4, § 9.] 
 ARTICLE V. 
 
 Section i. [State officers; election and compensa- 
 tion.] — ^The secretary of state, comptroller, treasurer, 
 and attorney-general, shall be chosen at a general 
 election, and shall hold their offices for two years. Each 
 of the ofScers in this article named (except the speaker 
 of the assembly) shall, at stated times, during his con- 
 tinuance in office, receive for his services a compensa- 
 tion, which shall not be increased or diminished during 
 the term for which he shall have been elected ; nor shall 
 he receive, to his use, any fees or perquisites of office, 
 or other compensation. 
 
 [Const. 1777, art. 23 ; 1821, art. 4, § 6 ; 1894, art. S, §§ i, 2.] 
 
 § 2. [State engineer and suirveyor.J — A state en- 
 gineer and surveyor shall be chosen at a general elec- 
 tion, and shall hold his office two years, but no person 
 shall be elected to said office who is not a practical en- 
 gineer. 
 
 [Const. 1777, art. 23; 1821, art. 4, § 5; 1894, art. 5, §§ i, 2.] 
 
 § 3. [Canal commissioners.] — Three canal commis- 
 sioners shall be chosen at the general election which 
 shall be held next after the adoption of this Constitution, 
 one of whom shall hold his office for one year, one for 
 
246 Constitutional History of New York. 
 
 two years, and one for three years. The commissioners 
 of the canal fund shall meet at the capitol on the first 
 Monday of January next after such election, and deter- 
 mine by lot which of said commissioners shall hold his 
 office for one year, which for two, and which for three 
 years ; and there shall be elected annually, thereafter, one 
 canal commissioner, who shall hold his office for three 
 years. 
 
 [New. Abrogated in 1876.] 
 
 § 4. [State prison inspectors.] — Three inspectors of 
 state prisons shall be elected at the general election 
 which shall be held next after the adoption of this Con- 
 stitution, one of whom shall hold his office for one 
 year, one for two years, and one for three years. The 
 governor, secretary of state, and comptroller, shall meet 
 at the capitol on the first Monday of January next 
 succeeding such election, and determine by lot which of 
 said inspectors shall hold his office for one year, which 
 for two, and which for three years; and there shall be 
 elected annually thereafter, one inspector of state pris- 
 ons, who shall hold his office for three years; said in- 
 spectors shall have the charge and superintendence of the 
 state prisons, and shall appoint all the officers therein. 
 All vacancies in the office of such inspector shall be filled 
 by the governor, till the next election. 
 
 [New. Abrogated in 1876.] 
 
 § 5. [Commissioners of land office and canal fund.] 
 
 — The lieutenant governor, speaker of the assembly, 
 secretary of state, comptroller, treasurer, attorney-gen- 
 eral, and state engineer and surveyor shall be the com- 
 missioners of the land office. 
 
 The lieutenant governor, secretary of state, comp- 
 
The Third Constitution, 184.6. 247 
 
 troller, treasurer, and attorney general shall be the com- 
 missioners of the canal fund. 
 
 The canal board shall consist of the commissioners of 
 the canal fund, the state engineer and surveyor, and 
 the canal commissioners. 
 
 [New. Const. 1894, art. s, § 5.] 
 
 § 6. [Powers and duties of boards.] — The powers 
 and duties of the respective boards, and of the several 
 officers in this article mentioned, shall be such as now 
 are or hereafter may be prescribed by law. 
 
 [New. Const. 1894, art. 5, § 6.] 
 
 § 7. [Suspension of treasurer.] — The treasurer 
 
 may be suspended from office by the governor, during 
 the recess of the legislature, and until thirty days after 
 the commencement of the next session of the legisla- 
 ture, whenever it shall appear to him that such treas- 
 urer has, in any particular, violated his duty. The gov- 
 ernor shall appoint a competent person to discharge the 
 duties of the office, during such suspension of the treas- 
 urer. 
 
 [New. Const. 1894, art. S, § 7.] 
 
 § 8. [Certain offices abolished.] — All offices for the 
 weighing, gauging, measuring, culling, or inspect- 
 ing any merchandise, produce, manufacture, or com- 
 modity whatever, are hereby abolished, and no such 
 office shall hereafter be created by law; but nothing in 
 this section contained shall abrogate any office created 
 for the purpose of protecting the public health or the 
 interests of the state in its property, revenue, tolls, or 
 purchases, or of supplying the people with correct stand- 
 
248 Constitutional History of New York. 
 
 ards of weights and measures, or shall prevent the cre- 
 ation of any office for such purposes hereafter. 
 
 [New. Const. 1894, art. S, § 8.] 
 
 ARTICLE VI. 
 
 Section i. [Assembly may impeach civil officers.] 
 
 — The assembly shall have the power of impeach- 
 ment, by the vote of the majority of all the members 
 elected. The court for the trial of impeachments shall 
 be composed of the president of the senate, the sen- 
 ators, or a major part of them, and the judges of the 
 court of appeals, or the major part of them. On the 
 trial of an impeachment against the governor, the lieu- 
 tenant governor shall not act as a member of the court. 
 No judicial officer shall exercise his office after he shall 
 have been impeached, until he shall have been acquitted. 
 Before the trial of an impeachment, the members of the 
 court shall take an oath or affirmation, truly and im- 
 partially to try the impeachment, according to the evi- 
 dence; and no person shall be convicted without the 
 concurrence of two thirds of the members present. 
 Judgment in cases of impeachment shall not extend 
 further than to removal from office, or removal from 
 office and disqualification to hold and enjoy any office 
 of honor, trust, or profit, under this state; but the party 
 impeached shall be liable to indictment and punishment 
 according to law. 
 
 [Const. 1777, art. 33; 1821, art. S, § 2; Judiciary Article of 1869, 
 § I ; 1894, art. 6, § 13.] 
 
 § 2. [Court of appeals.] — There shall be a court of 
 appeals, composed of eight judges, of whom four shall 
 be elected by the electors of the state for eight years, 
 and four selected from the class of justices of the 
 
The Third Constitution, 1846. 249 
 
 supreme court having the shortest time to serve. Pro- 
 vision shall be made by law for designating one of the 
 number elected as chief judge, and for selecting such 
 justices of the supreme court, from time to time, and for 
 so classifying those elected, that one shall be elected every 
 second year. 
 
 [New. Judiciary Article of 1869. Const. 1894, art. 6, % 7. i 
 
 Four members of this court were taken from the supreme court 
 by regular process of selection and rotation, and it was inevitable 
 that the court would occasionally be called upon to review the 
 judgments rendered by such judges in the supreme court. Imme- 
 diately on the organization of the new court a question arose as to 
 the power of a justice of the supreme court to sit in review of his 
 own decision, and in Pierce v. Delamater (1847) i N. Y. 17, the 
 court of appeals unanimously decided that a justice of the supreme 
 court who came into the court of appeals by operation of the con- 
 stitutional provision might take part in the determination of causes 
 brought up for review from a subordinate court of which he was a 
 member, and in the decision of which he took part in the court be- 
 low. A note at the end of the case states that Chief Justice Jewett, 
 who had been a justice of the supreme court. Judge Ruggles, who 
 had been a circuit judge, and Judge Jones, who had been a chief 
 justice of the superior court of the city of New York, subsequently 
 took part in reviewing their own decisions while sitting in the sev- 
 eral courts which have just been mentioned. 
 
 The court of appeals also held in McCarron v. People (i8ss) I3 
 N. Y. 74, that a justice of the supreme court who had become a 
 member of the court of appeals under the operation of this section 
 might, while a member of the higher court, preside at a court of 
 oyer and terminer. 
 
 The Constitution did not prescribe a quorum of the court and the 
 power of the legislature to fix a quorum was considered in Oakley 
 V. Aspinwall (1850) 3 N. Y. 547. The judiciary act of 1847, chap. 
 280, fixed the quorum at six; and in this case the court held that 
 four judges, seven being present, could grant a motion for the re- 
 versal of a judgment.] 
 
 §3. [Supreme court.] — There shall be a supreme 
 court, having general jurisdiction in law and equity. 
 
 [New. Const. 1821, art. S, § 4; Judiciary Article of 1869, § 6; 1894, 
 art. 6, § I.] 
 
250 Constitutional History of New York. 
 
 § 4. [Judicial districts.] — The state shall be di- 
 vided into eight judicial districts, of which the city of 
 New York shall be one; the others to be bounded by 
 county lines, and to be compact and equal in population, 
 as nearly as may be. There shall be four justices of 
 the supreme court in each district, and as many more 
 in the district composed of the city of New York as 
 may, from time to time, be authorized by law, but not 
 to exceed in the whole such number in proportion to its 
 population as shall be in conformity with the number 
 of such judges in the residue of the state, in proportion 
 to its population. They shall be classified so that one 
 of the justices of each district shall go out of office at the 
 end of every two years. After the expiration of their 
 terms under such classification, the term of their office 
 shall be eight years. 
 
 [New. Judiciary Article of 1869, § 6; 1894, art. 6, § i. The Con- 
 stitution of 1821, art. 5, § S, divided the state into judicial circuits.] 
 
 § 5. [Legislature may alter jurisdiction and pro- 
 ceedings in law and equity.] — The legislature shall 
 have the same powers to alter and regulate the juris- 
 diction and proceedings in law and equity as they have 
 heretofore possessed. 
 
 [New. Judiciary Article of 1869, § 8; 1894, art. 6, § 3.] 
 
 § 6. [General and special term; circuits; oyer and 
 terminer.] — Provision may be made, by law, for 
 designating, from time to time, one or more of the said 
 justices, who is not a judge of the court of appeals, to 
 preside at the general terms of the said court, to be 
 held in the several districts. Any three or more of the 
 said justices, of whom one of the said justices so desig- 
 nated shall always be one, may hold such general terms. 
 
The Third Constitution, 1846. 251 
 
 Any one or more of the justices may hold special terms, 
 and circuit courts, and any one of them may preside in 
 courts of oyer and terminer in any county. 
 
 [New Judiciary Article of 1869, § 7; 1894, art. 6, § 2. 
 
 The court of appeals in McCarron v. People (1855) 13 N. Y. 74, 
 held that a justice of the supreme court might preside in the court 
 of oyer and terminer, though at the same time acting as a member 
 of the court of appeals, under the operation of the Constitutional 
 provision by which four judges of that court were periodically se- 
 lected from the supreme court. 
 
 In Real v. People (1870) 42 N. Y. 270, the court of appeals held 
 that § 8 of the new judiciary article (1869) took effect January i, 
 1870, and that until that time a justice of the supreme court might, 
 under the foregoing section, sit in the general term in review of a 
 decision made by himself at a trial term, although such general term 
 was held after the determination by the state board of canvassers 
 of the result of the election at which the judiciary article was ap- 
 proved by the people. See also Richter v. Poppenhausen (1870) 42 
 N. Y. 373-] 
 
 § 7. [Compensation of judges.] — The judges of the 
 court of appeals and justices of the supreme court shall 
 severally receive, at stated times, for their services, a 
 compensation, to be established by law, which shall not 
 be increased or diminished during their continuance in 
 office. 
 
 [New. Judiciary Article of 1869, §§ 13, 14; 1894, art. 6, § 12.] 
 
 § 8. [Judges to hold no other office.] — They shall 
 not hold any other office or public trust. All votes for 
 either of them for any elective office (except that of 
 justice of the supreme court or judge of the court of 
 appeals) given by the legislature or the people shall be 
 void. They shall not exercise any power of appoint- 
 ment to public office. Any male citizen, of the age of 
 twenty-one years, of good moral character, and who 
 possesses the requisite qualifications of learning and 
 
252 Constitutional History of New York. 
 
 ability, shall be entitled to admission to practice in all 
 the courts of this state. 
 
 rConst. 1777, art. 28; 1821, art. S, § 7; Judiciary Article of 1869, § 
 10; 1894, art. 6, § 10. 
 
 The judiciary act of 1847, chap. 280, § 75, provided for the ad- 
 mission of attorneys by the general term of the supreme court, and 
 it was held in Re Brewer (1847) 3 How. Pr. 169, that this statute 
 prescribed the only method of admission, and that county courts had 
 no authority to admit attorneys. 
 
 The legislature of 1847 passed an act (chap. 470, § 46) providing 
 that "any person of good moral character, although not admitted as 
 an attorney, may manage, prosecute, or defend a suit for any other 
 person, provided he is specially authorized for that purpose by the 
 party for whom he appears, in writing or by personal nomination 
 in open court." The supreme court in McKoan v. Devries (1848) 
 3 Barb. 196, held that this violated the provision of the foregoing 
 section of the Constitution providing for the admission of attorneys. 
 
 The supreme court also held in Matter of Law Graduates of the 
 University of New York (i860) 31 Barb. 353, that the act of i860, 
 chap. 187, which conferred on the faculty of law of the University 
 of the City of New York the right to determine the qualifications of 
 graduates as applicants for admission as attorneys, was a violation 
 of the foregoing section of the Constitution. 
 
 But the court of appeals in Re Cooper (i860) 22 N. Y. 67 sus- 
 tained another act of i860, chap. 202, which conferred on the law 
 committee of Columbia College power to examine and recommend 
 graduates of the Columbia Law School for admission to the bar, and 
 they were entitled to admission as attorneys on such recommenda- 
 tion, as evidenced by the diploma issued after such examination. 
 
 The term "citizen," as used in the last sentence of the section, was 
 held to mean a citizen of this state, and a resident of another state 
 had no absolute right to admission as an attorney in this state, 
 though possessing all other requisite qualifications. Re Henry (1869) 
 40 N. Y. 560.] 
 
 § 9. [Legislature to classify judges and fix terms 
 of court.] — The classification of the justices of the 
 supreme court, the times and place of holding the 
 terms of the court of appeals, and of the general and 
 special terms of the supreme court, within the several 
 districts, and the circuit courts and courts of oyer and 
 
The Third Constitution, 1846. 253 
 
 terminer, within the several counties, shall be provided 
 for by law. 
 
 [New. Abrogated by Judiciary Article of 1869; as to appointment 
 of terms, see Const. 1894, art. 6, § 2.] 
 
 § 10. [Testimony in equity cases.] — The testimony 
 in equity cases shall be taken in like manner as in cases 
 at law. 
 
 [New. Judiciary Article of 1869, § 28; art. 6, § 3.] 
 
 § II. [Removal of judges.] — Justices of the su- 
 preme court and judges of the court of appeals may be 
 removed by concurrent resolution of both houses of the 
 legislature, if two thirds of all the members elected to 
 the assembly and a majority of all the members elected 
 to the senate concur therein. All judicial officers, except 
 those mentioned in this section, and except justices of the 
 peace and judges and justices of inferior courts, not of 
 record, may be removed by the senate on the recom- 
 mendation of the, governor; but no removal shall be made 
 by virtue of this section, unless the cause thereof be 
 entered on the journals, nor unless the party complained 
 of shall have been served with a copy of the complaint 
 against him, and shall have had an opportunity of being 
 heard in his defense. On the question of removal the 
 ayes and noes shall be entered on the journals. 
 
 [New. Const. 1821, art. i, § 13; Am. 1845; Judiciary Article of 
 1869, § 11; 1894, art. 6, § II.] 
 
 § 12. [Election of judges.] — The judges of the 
 court of appeals shall be elected by the electors of the 
 state, and the justices of the supreme court by the 
 electors of the several judicial districts, at such times as 
 may be prescribed by law. 
 
 [New. Judiciary Article of 1869, art. 6, §§ 2 and 13; 1894, art. 6, 
 §i I and 7.1 
 
254 Constitutional History of New York. 
 
 § 13. [Vacancies, how filled.] — In case the office of 
 any judge of the court of appeals or justice of the su- 
 preme court shall become vacant before the expiration 
 of the regular term for which he was elected, the vacancy- 
 may be filled by appointment by the governor until it 
 shall be supplied at the next general election of judges, 
 when it shall be filled by election, for the residue of the 
 unexpired term. 
 
 [New in form. See 1821, art. 4, § 7; Judiciary Article of 1869, § 
 9; 1894, art. 6, §§ 4 and 8. 
 
 Under this section a vacancy in the office of justice of the supreme 
 court must have been filled at the election next after the vacancy oc- 
 curred, although too late to allow the secretary of state to give the 
 statutory notice. People ex rel. Dawes v. Cowles (1856) 13 N. Y. 
 3S0. The possible situation presented by this case, which might 
 often be repeated, was one of the reasons which prompted the Con- 
 vention of 1867 to recommend the three months' rule concerning 
 vacancies, which was included in the Judiciary Article of 1869, and 
 continued in the Constitution of 1894.] 
 
 § 14. [County judges and surrogates.] — There 
 shall be elected in each of the counties of this state, ex- 
 cept the city and county of New York, one county 
 judge, who shall hold his office for four years. He shall 
 hold the county court and perform the duties of the office 
 of surrogate. The county court shall have such juris- 
 diction, in cases arising in justices' courts, and in special 
 cases, as the legislature may prescribe, but shall have no 
 original civil jurisdiction except in such special cases. 
 
 The county judge, with two justices of the peace, to 
 be designated according to law, may hold courts of ses- 
 sions, with such criminal jurisdiction as the legislature 
 shall prescribe, and perform such other duties as may be 
 required by law. 
 
 The county judge shall receive an annual salary, to be 
 fixed by the board of supervisors, which shall be neither 
 increased nor diminished during his continuance in office. 
 
The Third Constitution, 184.6. 255 
 
 The justices of the peace, for services in courts of ses- 
 sions, shall be paid a per diem allowance out of the 
 county treasury. 
 
 In counties having a population exceeding forty thou- 
 sand, the legislature may provide for the election of a 
 separate officer to perform the duties of the office of 
 surrogate. 
 
 The legislature may confer equity jurisdiction in 
 special cases upon the county judge. 
 
 Inferior local courts of civil and criminal jurisdiction 
 may be established by the legislature in cities; and such 
 courts, except for the cities of New York and Buffalo, 
 shall have an uniform organization and jurisdiction in 
 such cities. 
 
 [Const. 1777, art. 24; 1821, art. 5, § 6; Judiciary Article of 1869, §§ 
 15, 19; 1894, art. 6, i§ 14 IS, 18. 
 
 The judiciary act of 1847, chap. 280, § 30, specified and defined the 
 jurisdiction of county courts, enumerating a large number of cases. 
 The supreme court, in Beecher v. Allen (1849) S Barb. 169, sustained 
 the original action of assumpsit on a guaranty of a promissory note 
 in the county court, and held that it was a "special case," within the 
 foregoing section, and that this provision of the judiciary act was 
 therefore valid. 
 
 The court of appeals in Kundolf v. Thalheimer (1855) 12 N. Y. 
 593, held that a county court had no jurisdiction of an original action 
 for assault and battery, that such an action was not a "special case" 
 within the foregoing section, and that the provision in the judiciary 
 act already cited which purported to confer jurisdiction in such 
 cases was void; and it was intimated in the same case that a county 
 court had not jurisdiction of the ordinary common-law actions. 
 
 The jurisdiction of the county court in actions for the foreclosure 
 of mortgages was denied in Hall v. Nelson (1856) 23 Barb. 88, and 
 it was there held that the provision in the Code of Procedure, § 30,. 
 conferring such jurisdiction, was void. But the court of appeals in 
 Arnold v. Rees (1858) 18 N. Y. 57, took a different view, and held 
 that an action to foreclose a mortgage was a "special case" within 
 the Constitution, and that the provision of the Code of Procedure, 
 § 30, conferring jurisdiction on county courts in foreclosure actions, 
 was valid. 
 
 The jurisdiction of the county court in partition cases was also 
 sustained in Doubleday v. Heath (1857) 16 N. Y. 80. The general 
 
2S6 Constitutional History of New York. 
 
 jurisdiction of the county court is now defined by the Constitution 
 of 1894. 
 
 The provision in this section relating to the designation of justices 
 of sessions received attention in Nelson v. People (1861) 23 N. Y. 
 293, where the court sustained an act (L. i860, chap. 16) designating 
 by name two persons to act as justices of sessions in Otsego county. 
 The office of justice of sessions was abolished by the Constitution 
 of 1894.] 
 
 § 15. [Special county judge and surrogate.] — The 
 
 legislature may, on application of the board of super- 
 visors, provide for the election of local officers, not to 
 exceed two in any county, to discharge the duties of 
 county judge and of surrogate, in cases of their inability, 
 or of a vacancy, and to exercise such other powers in spe- 
 cial cases as may be provided by law. 
 
 [New. Const. 1894, art. 6, § 16.] 
 
 § 16. [Reorganization of judicial districts.] — The 
 
 legislature may reorganize the judicial districts at the first 
 session after the return of every enumeration under this 
 Constitution, in the manner provided for in the fourth 
 section of this article, and at no other time; and they 
 may, at such session, increase or diminish the number 
 of districts ; but such increase or diminution shall not be 
 more than one district at any one time. Each district 
 shall have four justices of the supreme court; but no 
 diminution of the districts shall have the effect to remove 
 a judge from office. 
 
 [Const 1821, art. S, § 5; Judiciary Article of 1869, § 6; 1894, art. 
 6, § I.] 
 
 § 17. [Justices of the peace.] — The electors of the 
 several towns shall, at their annual town meeting, and 
 in such manner as the legislature may direct, elect jus- 
 tices of the peace, whose term of office shall be four 
 years. In case of an election to fill a vacancy occurring 
 
The Third Constitution, 1846. ^57 
 
 before the expiration of a full term, they shall hold for 
 the residue of the unexpired term. Their number and 
 classification may be regulated by law. Justices of the 
 peace and judges or justices of inferior courts, not of 
 record, and their clerks, may be removed after due notice, 
 and an opportunity of being heard in their defense by 
 such county, city, or state courts as may be prescribed 
 by law, for causes to be assigned in the order of removal. 
 
 [Const. 1777, art. 24; 1821, art. 4, § 7; Am. 1826; Judiciary Article 
 of 1869, § 18; 1894, art. 6, § 17.] 
 
 § 18. [Local judicial officers.] — All judicial officers 
 of cities and villages, and all such judicial officers as 
 may be created therein by law, shall be elected at such 
 times and in such manner as the legislature may direct. 
 
 [Const. 1821, art. 4, § 14; Judiciary Article of 1869, §§ 18, 19; 1894, 
 art. 6, §§ 17, 18.] 
 
 § 19. [Clerk of court of appeals; clerks of supreme 
 court.] — Clerks of the several counties of this state 
 shall be clerks of the supreme court, with such powers 
 and duties as shall be prescribed by law. A clerk of the 
 court of appeals, to be ex-oiJicio clerk of the supreme 
 court, and to keep his office at the seat of government, 
 shall be chosen by the electors of the state ; he shall hold 
 his office for three years, and his compensation shall be 
 fixed by law, and paid out of the public treasury. 
 
 [Const. 1821, art. 4, § 9; Judiciary Article of 1869, § 20; 1894, art. 
 6, § 19.] 
 
 § 20. [Fees to judicial officers prohibited.] — No 
 judicial officer, except justices of the peace, shall receive, 
 to his own use, any fees or perquisites of office. 
 
 [New, Judiciary Article of 1869, § 21 ; 1894, art. 6, § 20.] 
 Vol. I. Const. Hist.— 17. 
 
258 Constitutional History of New York. 
 
 § 21. [Judgments of inferior courts may be re- 
 moved to court of appeals.] — The legislature may au- 
 thorize the judgments, decrees, and decisions of any local 
 inferior court of record, of original civil jurisdiction, 
 established in a city, to be removed, for review, directly 
 into the court of appeals. 
 
 [New. Judiciary Article of 1869, § 22.] 
 
 § 22. [Publication of statutes and decisions.] — The 
 
 legislature shall provide for the speedy publication of all 
 statute laws, and of such judicial decisions as it may 
 deem expedient. And all laws and judicial decisions 
 shall be free for publication by any person. 
 
 [New. Judiciary Article of i86g, § 23; 1894, art. 6, § 21.] 
 
 § 23. [Tribunals of conciliation.] — Tribunals of 
 conciliation may be established, with such powers and 
 duties as may be prescribed by law; but such tribunals 
 shall have no power to render judgment to be obligatory 
 on the parties, except they voluntarily submit their mat- 
 ters in difference, and agree to abide the judgment, or 
 assent thereto, in the presence of such tribunal, in such 
 cases as shall be prescribed by law. 
 
 [New. Abrogated by Judiciary Article of 1869.] 
 
 § 24. [Commissioners to revise procedure.] — The 
 
 legislature, at its first session after the adoption of this 
 Constitution, shall provide for the appointment of three 
 commissioners, whose duty it shall be to revise, reform, 
 simplify, and abridge the rules of practice, pleadings, 
 forms and proceedings of the courts of record of this 
 state, and to report thereon to the legislature, subject to 
 their adoption and modification from time to time. 
 
 [New. Abrogated by Judiciary Article of 1869.] 
 
The Third Constitution, 1846. 259 
 
 § 25. [Legislature to organize court of appeals; 
 transfer of business of other courts.] — ^The legisla- 
 ture, at its first session after the adoption of this Con- 
 stitution, shall provide for the organization of the court 
 of appeals, and for transferring to it the business pend- 
 ing in the court for the correction of errors, and for 
 the allowance of writs of error and appeals to the court 
 of appeals from the judgments and decrees of the present 
 court of chancery and supreme court, and of the courts 
 that may be organized under this Constitution. 
 
 [Temporary.] 
 
 ARTICLE VII. 
 
 Section i. [Canal sinking fund.] — After paying the 
 expenses of collection, superintendence, and ordinary 
 repairs, there shall be appropriated and set apart, in each 
 fiscal year, out of the revenues of the state canals, in 
 each year, commencing on the first day of June, one 
 thousand eight hundred and forty-six, the sum of one 
 million and three hundred thousand dollars, until the 
 first day of June, one thousand eight hundred and fifty- 
 five, and from that time, the sum of one million and 
 seven hundred thousand dollars, in each fiscal year, as 
 a sinking fund, to pay the interest and redeem the prin- 
 cipal of that part of the state debt called the canal debt, 
 as it existed at the time first aforesaid, and including 
 three hundred thousand dollars, then to be borrowed, 
 until the same shall be wholly paid; and the principal 
 and income of the said sinking fund shall be sacredly 
 applied to that purpose. 
 
 [New. Abrogated by Const. 1894.] 
 
 § 2. [Canal appropriations; state debts.] — After 
 complying with the provisions of the first section of this 
 
26o Constitutional History of New York. 
 
 article there shall be appropriated and set apart out of 
 the surplus revenues of the state canals in each fiscal 
 year, commencing on the first day of June, one thousand 
 eight hundred and forty-six, the sum of three hundred 
 and fifty thousand dollars, until the time when a suffi- 
 cient sum shall have been appropriated and set apart, 
 under the said first section, to pay the interest and ex- 
 tinguish the entire principal of the canal debt; and after 
 that period, then the sum of one million and five hundred 
 thousand dollars in each fiscal year, as a sinking fund, 
 to pay the interest and redeem the principal of that part 
 of the state debt called the general fund debt, including 
 the debt for loans of the state credit to railroad com- 
 panies, which have failed to pay the interest thereon, and 
 also the contingent debt on state stocks loaned to incor- 
 porated companies which have hitherto paid the interest 
 thereon, whenever, and as far as any part thereof may 
 become a charge on the treasury or general fund until 
 the same shall be wholly paid ; and the principal and in- 
 come of the said last-mentioned sinking fund shall be 
 sacredly applied to the purpose aforesaid ; and if the pay- 
 ment of any part of the moneys to the said sinking fund 
 shall at any time be deferred, by reason of the priority 
 recognized in the first section of this article, the sum so 
 deferred, with quarterly interest thereon at the then cur- 
 rent rate, shall be paid to the last-mentioned sinking fund 
 as soon as it can be done consistently with the just rights 
 of the creditors holding said canal debt. 
 
 [New. Abrogated by Const. 1894.] 
 
 § 3. [Canal revenues.] — After paying the said ex- 
 penses of superintendence and repairs of the canals, and 
 the sums appropriated by the first and second sections of 
 this article, there shall be paid out of the surplus revenues 
 of the canals to the treasury of the state, on or before 
 
The Third Constitution, 1846. 261 
 
 the thirtieth day of September in each year, for the use 
 and benefit of the general fund, such sum, not exceeding 
 two hundred thousand dollars, as may be required to 
 defray the necessary expenses of the state; and the re- 
 mainder of the revenues of the said canals shall, in each 
 fiscal year, be applied in such manner as the legislature 
 shall direct to the completion of the Erie canal enlarge- 
 ment and the Genesee Valley and Black River canals, 
 until the said canals shall be completed. 
 
 If at any time after the period of eight years from the 
 adoption of this Constitution, the revenues of the state, 
 unappropriated by this article, shall not be sufficient to 
 defray the necessary expenses of the government, with- 
 out continuing or laying a direct tax, the legislature may, 
 at its discretion, supply the deficiency in whole or in part 
 from the surplus revenues of the canals, after complying 
 with the provisions of the first two sections of this ar- 
 ticle for paying the interest and extinguishing the prin- 
 cipal of the canal and general fund debt; but the sum 
 thus appropriated from the surplus revenues of the canals 
 shall not exceed annually three hundred and fifty thou- 
 sand dollars, including the sum of two hundred thousand 
 dollars provided for by this section for the expenses of 
 the government, until the general fund debt shall be ex- 
 tinguished, or until the Erie canal enlargement and 
 Genesee Valley and Black River canals shall be com- 
 pleted, and after that debt shall be paid, or the said canals 
 shall be completed, then the sum of six hundred and 
 seventy-two thousand five hundred dollars, or so much 
 thereof as shall be necessary, may be annually appro- 
 priated to defray the expenses of the government. 
 
 [Superseded by amendment adopted in 1854. This latter amend- 
 ment was superseded by an amendment adopted in 1882. Const. 
 1894, art. 7, § 9. 
 In the chapter from 1847 to 1867 a sketch has been given of the 
 ' agitation which led to the enactment in 1851 of chapter 485 "to pro- 
 
262 Constitutional History of New York. 
 
 vide for the completion of the Erie canal enlargement and the 
 Genesee Valley and Black River canals," which, among other things, 
 authorized a possible state debt of nine million dollars to be repre- 
 sented by canal revenue certificates. In Newell v. People (1852) 7 
 N. Y. 9, this act was held invalid because it violated the provisions 
 of the canal article of the Constitution. A summary of this decision 
 has been given in the sketch above cited and need not be repeated 
 here. The act and the decision declaring it invalid led to the amend- 
 ment of § 3 in 1854. 
 
 In the article on free canals, in the chapter on the period from 
 1874 to 1894, I have stated briefly the history of the policy under 
 which tolls were imposed for the benefit of the canals on merchan- 
 dise carried by railroads, and the abrogation of that policy by the re- 
 pealing act of 1851. This statute (chap. 497) was considered by the 
 court of appeals in People v. Ne^v York C. R. Co. (1862) 24 N. Y. 485, 
 and it was there held that railroad tolls, while for the benefit of the 
 canals, did not become a part of the canal revenues under the Con- 
 stitution, and that the legislature was not prohibited from abolishing 
 such tolls, although they were imposed by statutes in force when 
 the Constitution of 1846 was adopted.] 
 
 I 
 
 § 4. [Enforcement of state claims against corpora- 
 tions.] — The claims of the state against any incor- 
 porated company to pay the interest and redeem the 
 principal of the stock of the state, loaned or advanced 
 to such company, shall be fairly enforced, and not re- 
 leased or compromised; and the moneys arising from 
 such claims shall be set apart and applied as part of the 
 sinking fund provided in the second section of this ar- 
 ticle. But the time limited for the fulfillment of any 
 condition of any release or compromise heretofore made 
 or provided for may be extended by law. 
 
 [New. Abrogated by Const, of 1894.] 
 
 § 5. [Appropriations for deficiency in canal reve- 
 nues.] — If the sinking funds, or either of them, pro- 
 vided in this article, shall prove insufficient to enable the 
 state, on the credit of such fund, to procure the means 
 to' satisfy the claims of the creditors of the state, as they 
 become payable, the legislature shall, by equitable taxes, 
 
The Third Constitution, 1846. 263 
 
 so increase the revenues of the said funds as to make 
 them, respectively, sufficient perfectly to preserve the 
 public faith. Every contribution or advance to the 
 canals or their debt from any source other than their 
 direct revenues shall, with quarterly interest, at the rates 
 then current, be repaid into the treasury, for the use of 
 the state, out of the canal revenues, as soon as it can be 
 done consistently with the just rights of the creditors 
 holding the said canal debt. 
 
 [New. Am. 1882; Abrogated by Const. 1894.] 
 
 § 6. [Canals not to be disposed of.] — The legisla- 
 ture shall not sell, lease, or otherwise dispose of, any of 
 the canals of the state, but they shall remain the property 
 of the state, and under its management forever. 
 
 [New. Am. 1874; Am. 1882; Const. 1894, art. 7, § 8.] 
 
 § 7. [Salt springs not to be disposed of.] — The leg- 
 islature shall never sell or dispose of the salt springs 
 belonging to this state. The lands contiguous thereto, 
 and which may be necessary and convenient for the use 
 of the salt springs, may be sold by authority of law, and 
 under the direction of the commissioners of the land 
 office, for the purpose of investing the moneys arising 
 therefrom in other lands alike convenient; but by such 
 sale and purchase the aggregate quantity of these lands 
 shall not be diminished. 
 
 [New. Const. 1821, art. 7, § 10. Abrogated by Const. 1894. 
 
 Under this section the legislature had authority to appropriate 
 parts of the salt lands for public highways, canals, or railroads ; this 
 was not a sale of lands within the meaning of the Constitution, and 
 the 7th section of the act of 1848, chap. 344, authorizing the appro- 
 priation of such lands for railroad purposes, was held valid. Parma' 
 lee V. Oswego &■ S. R. Co. (1849) 7 Barb. 599.] 
 
264 Constitutional History of New York. 
 
 § 8. [State moneys not to be expended without ap- 
 propriation.] — No moneys shall ever be paid out of 
 the treasury of this state or any of its funds, or any of 
 the funds under its management, except in pursuance of 
 an appropriation by law; nor unless such payment be 
 made within two years next after the passage of such 
 appropriation act; and every such law, making a new 
 appropriation or continuing or reviving an appropria- 
 tion, shall distinctly specify the sum appropriated and 
 the object to which it is to be applied; and it shall not 
 be sufficient for such law to refer to any other law to 
 fix such sum. 
 
 [New. Const. 1894, art. 3, § 21.] 
 
 § 9. [No state aid to individuals or corporations.] — 
 
 The credit of the state shall not, in any manner, be given 
 or loaned to, or in aid of, any individual, association, 
 or corporation. 
 
 [New. Const. 1894, art. 7, § I.] 
 
 § 10. [When state may contract debt.] — The state 
 may, to meet casual deficits or failures in revenues, or 
 for expenses not provided for, contract debts; but such 
 debts, direct and contingent, singly or in the aggregate, 
 shall not at any time exceed one million of dollars ; and 
 the moneys arising from the loans creating such debts 
 shall be applied to the purpose for which they were 
 obtained, or to repay the debt so contracted, and to no 
 other purpose whatever. 
 
 [New. Const. 1894, art. 7, § 2.] 
 
 § II. [Debts for state defense.] — In addition to the 
 above limited power to contract debts, the state may 
 contract debts to repel invasion, suppress insurrection, or 
 
The Third Constitution, 184.6. 265 
 
 defend the state in war ; but the money arising from the 
 contracting of such debts shall be applied for the purpose 
 for which it was raised, or to repay such debts, and to 
 no other purpose whatever. 
 
 [New. Const. 1894, art. 7, § 3.] 
 
 § 12. [How other debts authorized.] — Except the 
 debts specified in the tenth and eleventh sections of this 
 article, no debt shall be hereafter contracted by or on 
 behalf of this state unless such debt shall be authorized 
 by a law for some single work or object, to be distinctly 
 specified therein ; and such law shall impose and provide 
 for the collection of a direct annual tax to pay, and 
 sufficient to pay, the interest on such debt as it falls due, 
 and also to pay and discharge the principal of such debt 
 within eighteen years from the time of the contracting 
 thereof. 
 
 No such law shall take effect until it shall, at a general 
 election, have been submitted to the people, and have 
 received a majority of all the votes cast for and against 
 it at such election. 
 
 On the final passage of such bill in either house of the 
 legislature, the question shall be taken by ayes and noes, 
 to be duly entered on the journal thereof, and shall be : 
 "Shall this bill pass, and ought the same to receive the 
 sanction of the people?" 
 
 The legislature may, at any time after the approval 
 of such law by the people, if no debt shall have been 
 contracted in pursuance thereof, repeal the same; and 
 may at any time, by law, forbid the contracting of any 
 further debt or liability under such law; but the tax 
 imposed by such act, in proportion to the debt and lia- 
 bility, which may have been contracted in pursuance of 
 such law, shall remain in force and be irrepealable, and 
 be annually collected until the proceeds thereof shall have 
 
266 Constitutional History of New York. 
 
 made the provisions hereinbefore specified to pay and 
 discharge the interest and principal of such debt and 
 liability. 
 
 The money arising from any loan or stock creating 
 such debt or liability shall be applied to the work or 
 object specified in the act authorizing such debt or lia- 
 bility, or for the repayment of such debt or liability, and 
 for no other purpose whatever. 
 
 No such law shall be submitted to be voted on within 
 three months after its passage, or at any general election 
 when any other law, or any bill, or any amendment to 
 the Constitution, shall be submitted to be voted for or 
 against. 
 
 [New. Am. 1854; Const. 1894, art. 7, § 4.] 
 
 § 13. [Tax law to state amount and object of tax.] 
 
 — Every law which imposes, continues, or revives a tax, 
 shall -distinctly state the tax and the object to which 
 it is to be applied, and it shall not be sufficient to refer 
 to any other law to fix such tax or object. 
 
 [By the amendments of 1874 this section became § 20 of article 3. 
 New. Const. 1894, art. 3, § 24.] 
 
 § 14. [Three-fifths bills.] — On the final passage, in 
 either house of the legislature, of every act which im- 
 poses, continues, or revives a tax, or creates a debt or 
 charge, or makes, continues, or revives any appropria- 
 tion of public or trust money or property, or releases, 
 discharges, or commutes any claim or demand of the 
 state, the question shall be taken by ayes and noes, which 
 shall be duly entered on the journals, and three fifths of 
 all the members elected to either house shall, in all such 
 cases, be necessary to constitute a quorum therein. 
 
 [By the amendments of 1874 this section became § 21 of article 3. 
 New. Const. 1894, art. 3, § 25.] 
 
The Third Constitution, 1846. 267 
 
 ARTICLE VIII. 
 
 Section i. [Corporations, how formed.] — Corpora- 
 tions may be formed under general laws; but shall not 
 be created by special act, except for municipal purposes, 
 and in cases where, in the judgment of the legislature, 
 the objects of the corporation cannot be attained under 
 general laws. All general laws and special acts passed 
 pursuant to this section may be altered from time to time, 
 or repealed. 
 
 [New. Const. 1821, art. 7, § 9; 1894, art. 8, § i.] 
 
 § 2. [Dues from corporations, how secured.] — 
 Dues from corporations shall be secured by such indi- 
 vidual liability of the corporators and other means as 
 may be prescribed by law. 
 
 [New. Const. 1894, art. 8, § 2.] 
 
 § 3. [Corporation defined.] — The term corpora- 
 tion, as used in this article, shall be construed to include 
 all associations and joint-stock companies having any of 
 the powers or privileges of corporations not possessed 
 by individuals or partnerships. And all corporations 
 shall have the right to sue, and shall be subject to be 
 sued, in all courts, in like cases as natural persons. 
 
 [New. Const. 1894, art. 8, § 3.] 
 
 § 4. [Banking corporations.] — The legislature shall 
 have no power to pass any act granting any special 
 charter for banking purposes; but corporations or asso- 
 ciations may be formed for such purposes under general 
 laws. 
 
 [New. Am. 1874; 1894 art. 8, § 4.] 
 
268 Constitutional History of New York. 
 
 § 5- [Specie pajmients not to be suspended.] — The 
 
 legislature shall have no power to pass any law sanction- 
 ing in any manner, directly or indirectly, the suspension 
 of specie payments by any person, association, or cor- 
 poration issuing bank notes of any description. 
 
 [New. Const. 1894, art. 8, § 5.] 
 
 § 6. [Registry of bills and notes.] — ^The legislature 
 shall provide by law for the registry of all bills or notes 
 issued or put in circulation as money, and shall require 
 ample security for the redemption of the same in specie. 
 
 [New. Const. 1894, art. 8, § 6.] 
 
 § 7. [Liability of stockholders.] — The stockholders 
 in every corporation and joint-stock association for 
 banking purposes, issuing bank notes or any kind of 
 paper credits, to circulate as money, after the first day 
 of January, one thousand eight hundred and fifty, shall 
 be individually responsible, to the amount of their re- 
 spective share or shares of stock in any such corporation 
 or association, for all its debts and liabilities of every 
 kind contracted after said first day of January, one 
 thousand eight hundred and fifty. 
 
 [New. Const. 1894, art. 8, § 7.] 
 
 § 8. [Preference of billholders.] — In case of the 
 insolvency of any bank or banking association, the bill- 
 holders thereof shall be entitled to preference in pay- 
 ment, over all other creditors of such bank or association. 
 
 [New. Const. 1894, art. 8, § 8.] 
 
 § 9. [Incorporation of cities and villages.] — It shall 
 be the duty of the legislature to provide for the organi- 
 
The Third Constitution, 1846. 269 
 
 zation of cities and incorporated villages, and to restrict 
 their power of taxation, assessment, borrowing money, 
 contracting debts, and loaning their credit, so as to pre- 
 vent abuses in assessments, and in contracting debt by 
 such municipal corporations. 
 
 [New. Const 1894, art. 12, § i.] 
 
 ARTICLE IX. 
 
 Section i. [Education funds preserved; how ap- 
 plied.] — The capital of the common-school fund, the 
 capital of the literature fund, and the capital of the 
 United States deposit fund shall be respectively preserved 
 inviolate. The revenues of the said common-school fund 
 shall be applied to the support of common schools; the 
 revenues of the , said literature fund shall be applied to 
 the support of academies; and the sum of twenty-five 
 thousand dollars of the reveijues of the United States 
 deposit fund shall each year be appropriated to and made 
 a part of the capital of the said common-school fund. 
 
 [Const. 1821, art 7, § 10; 1894, art. 9, § 3.] 
 ARTICLE X. 
 
 Section i. [Election and removal of certain county 
 officers.j — Sheriffs, clerks of counties, including the 
 register and clerk of the city and county of New York, 
 coroners, and district attorneys shall be chosen by the 
 electors of the respective counties once in every three 
 years, and as often as vacancies shall happen. Sheriffs 
 shall hold no other office, and be ineligible for the next 
 three years after the termination of their offices. They 
 may be required by law to renew their security from 
 time to time ; and in default of giving such new security. 
 
270 Constitutional History of New York. 
 
 their offices shall be deemed vacant. But the county shall 
 never be made responsible for the acts of the sheriff. 
 
 The governor may remove any officer in this section 
 mentioned, within the term for which he shall have been 
 elected; giving to such officer a copy of the charges 
 against him, and an opportunity of being heard in his 
 defense. 
 
 [Const. 1777, arts. 26, 28; 1821, art. 4, § 8; 1894, art. 10, § i.] 
 
 § 2. [Local officers, how chosen.] — All coujity offi- 
 cers whose election or appointment is not provided for 
 by this Constitution shall be elected by the electors of 
 the respective counties, or appointed by ^e boards of 
 supervisors or other county authorities, as the legislature 
 shall direct. All city, town, and village officers whose 
 election or appointment is not provided for by this Con- 
 stitution shall be elected by the electors of such cities, 
 towns, and villages, or of some division thereof, or ap- 
 pointed by such authorities thereof, as the legislature 
 shall designate for that purpose. All other officers 
 whose election or appointment is not provided for by 
 this Constitution, and all officers whose offices may here- 
 after be created by law, shall be elected by the peoplef, 
 or appointed, as the legislature may direct. 
 
 [New in form. Const. 1777, arts. 22, 29 ; 1821, art. 4, § 15 ; Am. 1826, 
 relative to justices of the peace; Am. 1833, 1839, relative to mayors; 
 1894, art. 10, § 2.] 
 
 § 3. [Duration of certain offices, how fixed.] — 
 
 When the duration of any office is not provided by this 
 Constitution, it may be declared by law, and if not so 
 declared, such office shall be held during the pleasure of 
 the authority making the appointment. 
 
 [Const. 1777, art. 28; 1821, art. 4, § 16; 1894, art. 10, § 3.] 
 
The Third Constitution, 1846. 271 
 
 § 4. [Legislature to prescribe time of elections.] — 
 The time of electing all officers named in this article 
 shall be prescribed by law. 
 
 [New. Const. 1894, art. 10, § 4.] 
 
 § 5. [Vacancies.] — The legislature shall provide 
 for filling vacancies in office, and, in case of elective 
 officers, no person appointed to fill a vacancy shall hold 
 his office by virtue of such appointment longer than the 
 commencement of the political year next succeeding the 
 first annual election after the happening of the vacancy. 
 
 [New. Const. 1894, art. 10, i 5.] 
 
 § 6. [Political year and legislative term ; opening of 
 legislature.] — The political year and legislative term 
 shall begin on the first day of January, and the legisla- 
 ture shall, every year, assemble on the first Tuesday in 
 January, unless a different day shall be appointed by 
 law. 
 
 [New. Const. 1821, art. i, § 14; 1894, art. 10, § 6.] 
 
 § 7. [Removal of officers.] — Provision shall be 
 made by law for the removal for misconduct or mal- 
 versation in office, of all officers (except judicial) whose 
 powers and duties are not local or legislative, and who 
 shall be elected at general elections, and also for supply- 
 ing vacancies created by such removal. 
 
 [New. Const. 1894, art. 1, § 7-1 
 
 § 8. [Legislature may determine vacancies.] — The 
 
 legislature may declare the cases in which any office shall 
 be deemed vacant, when no provision is made for that 
 purpose in this Constitution. 
 
 [New. Const. 1894, art. 10, i 8.] 
 
272 Constitutional History of New York. 
 
 ARTICLE XI. 
 
 Section i. [Militia.j — The militia of this state 
 shall, at all times hereafter, be armed and disciplined 
 and in readiness for service; but all such inhabitants of 
 this state, of any religious denomination whatever, as, 
 from scruples of conscience, may be adverse to bearing 
 arms, shall be excused therefrom upon such conditions 
 as shall be prescribed by law. 
 
 [Const. 1777, art. 24; 1821, art. 7, § s; 1894, art. 11, § i.] 
 
 § 2. [Militia officers, how chosen.] — Militia officers 
 shall be chosen or appointed as follows: Captains, sub- 
 alterns, and noncommissioned officers shall be chosen by 
 the written votes of the members of their respective 
 companies. Field officers of regiments and separate 
 battalions by the written votes of the commissioned offi- 
 cers of the respective regiments and separate battalions; 
 brigadier-generals and brigade inspectors by the field 
 officers of their respective brigades; major-generals, 
 brigadier-generals, and commanding officers of regiments 
 or separate battalions shall appoint the staff officers to 
 their respective divisions, brigades, regiments, or separate 
 battalions. 
 
 [Const. 1777, art. 24; 1821, art. 4, § i; 1894, art. 11, § 2.] 
 
 § 3, [Governor to appoint certain militia officers.] 
 
 — The governor shall nominate, and, with the consent 
 of the senate, appoint, all major-generals and the com- 
 missary-general. The adjutant-general and other chiefs 
 of staff departments, and the aide-de-camp of the com- 
 mander-in-chief shall be appointed by the governor, and 
 their commissions shall expire with the time for which 
 the governor shall have been elected. The commissary- 
 general shall hold his office for two years. He shall give 
 
The Third Constitution, 1846. 273 
 
 security for the faithful execution of the duties of his 
 office, in such manner and amount as shall be prescribed 
 by law. 
 
 [Const. 1777, art. 24; 1821, art. 4, § 2; 1894, art. 11, I 4.] 
 
 § 4. [Election of militia officers.] — The legislature 
 shall, by law, direct the time and manner of electing 
 militia officers, and of certifying their elections to the 
 governor. 
 
 [Const 1777, art. 24; 1821, art. 4, § 3; 1894, art. 11, § 5.] 
 
 § 5. [Commissioned officers; removal.] — The com- 
 missioned officers of the militia shall be commissioned 
 by the governor; and no commissioned officer shall be 
 removed from office unless by the senate, on the recom- 
 mendation of the governor, stating the grounds on which 
 such removal is recommended, or by the decision of a 
 court-martial, pursuant to law. The present officers of 
 the militia shall hold their commissions, subject to re- 
 moval, as before provided. 
 
 [New. Const. 1821, art. 4, 8 4; 1894, art. 11, § 6.] 
 
 § 6. [Method of choosing militia officers may be 
 changed.] — In case the mode of election and ap- 
 pointment of militia officers hereby directed shall not be 
 found conducive to the improvement of the militia the 
 legislature may abolish the same and provide by law for 
 their appointment and removal, if two thirds of the 
 members present in each house shall concur therein. 
 
 [New. Const. 1821, art. 4, § S; 1894, art. 11, § S-l 
 
 ARTICLE XII. 
 
 Section i. [Oath of office.] — Members of the leg- 
 islature, and all officers, executive and judicial, except 
 Vol. I. CoKST. Hist.— 18. 
 
274 Constitutional History of New York. 
 
 such inferior officers as may be by law exempted, shall, 
 before they enter on the duties of their respective offices, 
 take and subscribe the following oath or affirmation : 
 
 "I do solemnly swear (or affirm, as the case may be) 
 that I will support the Constitution of the United States 
 and the Constitution of the state of New York; and 
 that I will faithfully discharge the duties of the office 
 of , according to the best of my ability." 
 
 And no other oath, declaration, or test shall be re- 
 quired as a qualification for any office or public trust. 
 
 [Const. 1821, art. 6, § i ; Am. 1874: 1894, art. 13, § i.] 
 
 ARTICLE XIII. 
 
 Section i. [Constitution, how amended.] — Any 
 
 amendment or amendments to this Constitution may be 
 proposed in the senate and assembly; and if the same 
 shall be agreed to by a majority of the members elected 
 to each of the two houses, such proposed amendment or 
 amendments shall be entered on their journals with the 
 yeas and nays taken thereon, and referred to the legis- 
 lature to be chosen at the next general election of sena- 
 tors, and shall be published for three months previous 
 to the time of making such choice; and if, in the legis- 
 lature so next chosen as aforesaid, such proposed amend- 
 ment or amendments shall be agreed to by a majority 
 of all the members elected to each house, then it shall be 
 the duty of the legislature to submit such proposed 
 amendment or amendments to the people, in such man- 
 ner and at such times as the legislature shall prescribe; 
 and if the people shall approve and ratify such amend- 
 ment or amendments by a majority of the electors quali- 
 fied to vote for members of the legislature voting there- 
 
The Third Constitution, 1846. 275 
 
 on, such amendment or amendments shall become part 
 of the Constitution. 
 
 [New. Const. 1821, art. 8, I i; 1894 art. 14, § i-] 
 
 § 2. [Constitutional conventions.] — At the general 
 election, to be held in the year eighteen hundred and 
 sixty-six, and in each twentieth year thereafter, and also 
 at such time as the legislature may by law provide, the 
 question "Shall there be a convention to revise the Con- 
 stitution, and amend the same?" shall be decided by the 
 electors qualified to vote for members of the legislature ; 
 and in case a majority of the electors so qualified, voting 
 at such election, shall decide in favor of a convention 
 for such purpose, the legislature, at its next session, shall 
 provide by law for the election of delegates to such con- 
 vention. 
 
 [New. Const. 1894, art. 14, § 2.] 
 
 ARTICLE XIV. 
 
 Section i. [First election of legislature under this 
 Constitution.] — The first election of senators and 
 members of assembly, pursuant to the provisions of this 
 Constitution, shall be held on the Tuesday succeeding the 
 first Monday of November, one thousand eight hundred 
 and forty-seven. 
 
 The senators and members of assembly who may be 
 in office on the first day of January, one thousand eight 
 hundred and forty-seven, shall hold their office until and 
 including the thirty-first day of December following, and 
 no longer. 
 
 [Temporary.] 
 
 § 2. [First election of governor and lieutenant 
 governor.] — The first election of governor and lieu- 
 
276 Constitutional History of New York. 
 
 tenant governor, under this Constitution, shall be held 
 on the Tuesday succeeding the first Monday of Novem- 
 ber, one thousand eight hundred and forty-eight; and 
 the governor and lieutenant governor in office when this 
 Constitution shall take effect, shall hold their respective 
 offices until and including the thirty-first day of Decem- 
 ber of that year. 
 
 [Temporary.] 
 
 § 3. [State officers continued until expiration of 
 term.] — The secretary of state, comptroller, treas- 
 urer, attorney-general, district attorneys, surveyor-gen- 
 eral, canal commissioners, and inspectors of state prisons 
 in office when this Constitution shall take effect, shall 
 hold their respective offices until and including the thirty- 
 first day of December, one thousand eight hundred and 
 forty-seven, and no longer. 
 
 [Temporary.] 
 
 § 4. [First election of judges.] — The first election 
 of judges and clerk of the court of appeals, justices of 
 the supreme court, and county judges, shall take place 
 at such time, between the first Tuesday of April and 
 the second Tuesday of June, one thousand eight hundred 
 and forty-seven, as may be prescribed by law. The said 
 courts shall, respectively, enter upon their duties on the 
 first Monday of July, next thereafter; but the term of 
 office of said judges, clerk, and justices, as declared by 
 this Constitution, shall be deemed to commence on the 
 first day of January, one thousand eight hundred and 
 forty-eight. 
 
 [Temporary.] 
 
 § 5. [Transfer of business of certain courts.] — On 
 
 the first Monday of July, one thousand eight hundred 
 
The Third Constitution, 1846. 277 
 
 and forty-seven, jurisdiction of all suits and proceedings 
 then pending in the present supreme court and court of 
 chancery, and all suits and proceedings originally com- 
 menced and then pending in any court of common pleas 
 (except in the city and county of New York), shall 
 become vested in the supreme court hereby established. 
 Proceedings pending in courts' of common pleas, and in 
 suits originally commenced in justices' courts, shall be 
 transferred to the county courts provided for in this 
 Constitution, in such manner and form and under such 
 regulations as shall be provided by law. The courts of 
 oyer and terminer hereby established shall, in their re- 
 spective counties, have jurisdiction on and after the day 
 last mentioned of all indictments and proceedings then 
 pending in the present courts of oyer and terminer, and 
 also of all indictments and proceedings then pending in 
 the present courts of general sessions of the peace, except 
 in the city of New York, and except in cases of which 
 the courts of sessions, hereby established, may lawfully 
 take cognizance; and of such indictments and proceed- 
 ings the courts of sessions, hereby established, shall have 
 jurisdiction on and after the day last mentioned. 
 
 [Temporary. 
 
 The transfer of causes from the common pleas to the supreme 
 court, which was effected by this section, included all cases in which 
 any further judicial action was necessary, and not simply those 
 which had proceeded to judgment when the provision went into op- 
 eration on the first Monday of July, 1847. O'Maley v. Reese (1847) 
 I Barb. 643. 
 
 An execution on a judgment of the common pleas prior to the last- 
 named date was, after that date, properly issued out of the supreme 
 court, and subsequent proceedings were properly had therein. An 
 action is pending until the judgment therein is satisfied. Wegman 
 V. Childs (1869) 41 N. Y. I59-] 
 
 § 6. [Chancellor and supreme court to complete 
 certain business.] — The chancellor and the present 
 
278 Constitutional History of New York. 
 
 supreme court shall, respectively, have power to hear 
 and determine any of such suits and proceedings ready, 
 on the first Monday of July, one thousand eight hundred 
 and forty-seven, for hearing or decision, and shall, for 
 their services therein, be entitled to their present rates 
 of compensation until the first day of July, one thousand 
 eight hundred and forty-eight, or until all such suits and 
 proceedings shall be sooner heard and determined. 
 Masters in chancery may continue to exercise the func- 
 tions of their offices in the court of chancery, so long as 
 the chancellor shall continue to exercise the functions of 
 his office, under the provisions of this Constitution. 
 
 And the supreme court hereby established shall also 
 have power to hear and determine such of said suits and 
 proceedings as may be prescribed by law. 
 
 [Temporary.] 
 
 § 7. [Governor to fill vacancies.] — In case any 
 vacancy shall occur in the office of chancellor or justice 
 of the present supreme court previously to the first day 
 of July, one thousand eight hundred and forty-eight, the 
 governor may nominate, and by and with the advice and 
 consent of the senate appoint, a proper person to fill such 
 vacancy. Any judge of the court of appeals or justice 
 of the supreme court, elected under this Constitution, 
 may receive and hold such appointment. 
 
 [Temporary.] 
 
 § 8. [Certain judicial offices abolished.] — The offi- 
 ces of chancellor, justice of the existing supreme court, 
 circuit judge, vice chancellor, assistant vice chancellor, 
 judge of the existing county courts of each county, su- 
 preme court commissioner, master in chancery, examiner 
 in chancery, and surrogate (except as herein otherwise 
 provided), are abolished from and after the first Monday 
 
The Third Constitution, 1846. 279 
 
 of July, one thousand eight hundred and forty-seven 
 
 C1847). 
 
 [Other sections provide for continuing certain courts for the pur- 
 pose of completing their business, and for the transfer of causes to 
 new courts. See § 6 as to continuance of business, and §§ S and 12 
 as to transfer of causes.] 
 
 § 9. [Incumbents of abolished offices eligible to 
 new office.] — The chancellor, the justices of the pres- 
 ent supreme court, and the circuit judges, are hereby 
 declared to be severally eligible to any ofhce at the first 
 election under this Constitution. 
 
 [Temporary.] 
 
 § 10. [County officers to continue until expiration 
 of term.] — Sheriffs, clerks of counties (including the 
 register and clerk of the city and county of New York) , 
 and justices of the peace, and coroners, in office when 
 this Constitution shall take effect, shall hold their re- 
 spective offices until the expiration of the term for which 
 they were respectively elected. 
 
 [Temporary.] 
 
 § II. [Judicial officers may continue to receive cer- 
 tain fees.] — ^Judicial officers in office when this Con- 
 stitution shall take effect may continue to receive such 
 fees and perquisites of office as are now authorized by 
 law, until the first day of July, one thousand eight hun- 
 dred and forty-seven, notwithstanding the provisions of 
 the twentieth section of the sixth article of this Con- 
 stitution. 
 
 [Temporary.] 
 
 § 12. [Local courts continued.] — All local courts 
 established in any city or village, including the superior 
 court, common pleas, sessions, and surrogates' courts of 
 
28o Constitutional History of New York. 
 
 the city and county of New York, shall remain until 
 otherwise directed by the legislature, with their present 
 powers and jurisdictions; and the judges of such courts 
 and any clerks thereof, in office on the first day of Jan- 
 uary, one thousand eight hundred and forty-seven, shall 
 continue in office until the expiration of their terms of 
 office, or until the legislature shall otherwise direct. 
 
 [Temporary. 
 
 The provisions of this section relating to the jurisdiction of local 
 courts was superseded by § 12 of the j udiciary article of 1869. Pop- 
 tinger v. Yutte (1886) 102 N. Y. 38, 6 N. E. 259. 
 
 Under § 12 of article 14 of the Constitution, the legislature has 
 power to abolish courts held by justices of the peace in cities. Chap- 
 ter 196, Laws of 1876, establishing the municipal court of the city 
 of Rochester, and thereby, in effect, abolishing the office of justice 
 of the peace in said city, is constitutional. People ex rel. White v. 
 Rochester (1877) 5 N. Y. Week. Dig. 70.] 
 
 § 13. [When Constitution to take effect.] — This 
 Constitution shall be in force frdm and including the 
 first day of January, one thousand eight hundred and 
 forty-seven, except as herein otherwise provided. 
 
 [Temporary.] 
 
 Done in convention, at the capitol in the city of 
 Albany, the ninth day of October, in the year 
 one thousand eight hundred and forty-six, and 
 of the independence of the United States of 
 America the seventy-first. 
 
 In witness whereof, we have hereunto subscribed our 
 names. 
 
 JOHN TRACEY, 
 President and delegate from the county of Chenango. 
 
 James F. Starbuck, 1 
 
 H. W. Strong, \ Secretaries. 
 
 Fr. Singer, J 
 
Amendments from 1846 to 18^4. 281 
 
 AMENDMENTS FROM 1846 TO 1894. 
 
 Note. — This period, covering forty-eight years, was 
 prolific in constitutional suggestions and amendments. 
 It included the Convention of 1867, — one of the greatest 
 in the history of the state, — which proposed a new con- 
 stitution; but it was all rejected except the judiciary 
 article. The Constitutional Commission of 1872 was 
 also held during this period. This followed a rejection 
 of the work proposed by the Convention of 1867, and 
 the Commission recommended, either in form or sub- 
 stance, many amendments which had already been pro- 
 posed by that Convention. The same period also em- 
 braced the Judiciary Commission of 1890. Its attention 
 was confined to a single article ; and while its work bore 
 no immediate fruit, it had a very manifest influence in 
 shaping the judiciary article, as presented by the Con- 
 vention of 1894. Besides these three formal and or- 
 ganized movements for constitutional revision there were 
 scores of legislative amendments which never reached 
 the people. A large number were, however, actually 
 adopted, producing very important modifications of the 
 Constitution. These amendments may be conveniently 
 grouped under three heads; namely: A, The Judiciary 
 Article of 1869; B, The Amendments of 1874; and C, 
 Miscellaneous Amendments. 
 
 A. THE JUDICIARY ARTICLE OF 1869. 
 
 [This article, which was included in the Constitution proposed by 
 the Convention of 1867, was submitted separately, and adopted in 
 1869. Several amendments to the article were adopted prior to the 
 Constitution of 1894, and these will be found in group C, below. 
 Such amendments are indicated in notes under appropriate sections 
 in this article. Except as indicated therein, this article took effect 
 January i, 1870. Real v. People, 42 N. Y. 270 ; Richter v. Poppen- 
 hausen, 42 N. Y. 373; People ex rel. Davis v. Gardner, 45 N. Y. 812.] 
 
282 Constitutional History of New York. 
 
 Section i. [Assembly may impeach civil officers.] 
 
 — The assembly shall have the power of impeach- 
 ment, by a vote of the majority of all the members 
 elected. The court for the trial of impeachments shall 
 be composed of the president of the senate, the senators, 
 or a major part of them, and the judges of the court of 
 appeals, or the major part of them. On the trial of an 
 impeachment against the governor, the lieutenant gov- 
 ernor shall not act as a member of the court. No judi- 
 cial officer shall exercise his office after articles of im- 
 peachment against him shall have been preferred to the 
 senate, until he shall have been acquitted. Before the 
 trial of an impeachment, the members of the court shall 
 take an oath or affirmation, truly and impartially to try 
 the impeachment, according to the evidence ; and no per- 
 son shall be convicted without the concurrence of two 
 thirds .of the members present. Judgment in cases of 
 impeachment shall not extend further than to removal 
 from office, or removal from office and disqualification 
 to hold and enjoy any office of honor, trust, or profit 
 under this state; but the party impeached shall be liable 
 to indictment and punishment according to law. 
 
 [Const. 1777, art. 33; 1821, art. S, § 2; 1846, art. 6, § i; 1894, art. 6, 
 § 13.] 
 
 § 2. [Court of appeals.] — There shall be a court of 
 appeals, composed of a chief judge and six associate 
 judges, who shall be chosen by the electors of the state, 
 and shall hold their office for the term of fourteen years 
 from and including the first day of January next after 
 their election. At the first election of judges under this 
 Constitution, every elector may vote for the chief and. 
 only four of the associate judges. Any five members of 
 the court shall form a quorum, and the concurrence of 
 four shall be necessary to a decision. The court shall 
 
Amendments from 1846 to 1894. 283 
 
 have the appointment, with the power of removal, of its 
 reporter and clerk, and of such attendants as may be 
 necessary. 
 
 [Const. 1846, art. 6, § 2 ; 1894, art. 6, § 7.] 
 
 § 3. [Vacancies, how filled.] — When a vacancy 
 shall occur otherwise than by expiration of term, in the 
 office of chief or associate judge of the court of appeals, 
 the same shall be filled, for a full term, at the next gen- 
 eral election happening not less than three months after 
 such vacancy occurs; and until the vacancy shall be so 
 filled, the governor, by and with the advice and consent 
 of the senate, if the senate shall be in session, or, if not, 
 the governor alone, may appoint to fill such vacancy. 
 If any such appointment of chief judge shall be made 
 from among the associate judges, a temporary appoint- 
 ment of associate judge shall be made in like manner; 
 but in such case, the person appointed chief judge shall 
 not be deemed to vacate his office of associate judge any 
 longer than until the expiration of his appointment as 
 chief judge. The powers and jurisdiction of the court 
 shall not be suspended for want of appointment or elec- 
 tion, when the number of judges is sufficient to consti- 
 tute a quorum. All appointments under this section shall 
 continue until and including the last day of December 
 next after the election at which the vacancy shall be 
 filled. 
 
 LConst. 1821, art. 4, § 7; 1846, art. 6, § 13; 1894, art. 6, §§4, 8.] 
 
 § 4. [Transfer of causes; commission of appeals.] 
 
 — Upon the organization of the court of appeals, 
 under this article, the causes then pending in the present 
 court of appeals shall become vested in the court of 
 appeals hereby established. Such of said causes as are 
 
284 Constitutional History of New York. 
 
 pending on the first day of January, eighteen hundred 
 and sixty-nine, shall be heard and determined by a com- 
 mission, to be composed of five commissioners of ap- 
 peals, four of whom shall be necessary to constitute a 
 quorum ; but the court of appeals hereby established may 
 order any of said causes to be heard therein. Such com- 
 mission shall be composed of the judges of the present 
 court of appeals, elected or appointed thereto, and a fifth 
 commissioner, who shall be appointed by the governor, 
 by and with the advice and consent of the senate; or, 
 if the senate be not in session, by the governor; but in 
 such case, the appointment shall expire at the end of the 
 next session. 
 
 [New. Am. 1872. The second division of the court of appeals, 
 performing practically the functions of a commission, was author- 
 ized by an amendment adopted in 1888.] 
 
 § 5. [Vacancies in commission.] — If any vacancy 
 shall occur in the office of the said commissioners, it shall 
 be filled by appointment by the governor, by and with 
 the advice and consent of the senate; or, if the senate is 
 not in session, by the governor; but in such case, the 
 appointment shall expire at the end of the next session. 
 The commissioners shall appoint, from their number, a 
 chief commissioner, and may appoint and remove such 
 attendants as may be necessary. The reporter of the 
 court of appeals shall be the reporter of said commission. 
 The decisions of the commission shall be certified to, and 
 entered and enforced, as the judgments of the court of 
 appeals. The commission shall continue until the causes 
 committed to it are determined, but not exceeding three 
 years; and all causes then undetermined shall be heard 
 by the court of appeals. 
 
 [New.] 
 
Amendments from 1846 to 1894. 285 
 
 § 6. [Supreme court.] — There shall be the existing 
 supreme court, with general jurisdiction in law and 
 equity, subject to such appellate jurisdiction of the court 
 of appeals as now is or may be prescribed by law; and 
 it shall be composed of the justices now in office, who 
 shall be continued during their respective terms, and of 
 their successors. The existing judicial districts of the 
 state are continued until changed pursuant to this sec- 
 tion. Five of the justices shall reside in the district in 
 which is the city of New York, and four in each of the 
 other districts. . The legislature may alter the districts, 
 without increasing the number, once after every enumera- 
 tion, under this Constitution, of the inhabitants of the 
 state. 
 
 [Const. 1821, art. S, § 4; 1846, art. 6, § 3; Am. 1879, 1888; 1894, art. 
 6,1 I. 
 
 In De Hart v. Hatch (1875) 6 Thomp. & C. 186, the court denied 
 the power of the legislature, as expressed in Laws 1872, chap. 629, 
 and Laws 1874, chap. 545, to authorize the transfer of causes from 
 the supreme court to the marine court of the city ©f New York, on 
 the grounds substantially that the supreme court is a court of gen- 
 eral jurisdiction, which must be continuous to end of a contro- 
 versy, and could not be relinquished and tr; erred to another 
 
 tribunal.] 
 
 § 7. [General and special terms; circuits; oyer and 
 terminer.] — At the first session of the legislature, 
 after the adoption of this article, and from time to time 
 thereafter, as may be necessary, but not oftener than 
 once in five years, provisions shall be made for organiz- 
 ing, in the supreme court, not more than four general 
 terms thereof, each to be composed of a presiding 
 justice, and not more than three other justices, who 
 shall be designated, according to law, from the whole 
 ntunber of justices. Each presiding justice shall con- 
 tinue to act as such during his term of office. Provisions 
 shall be made by law for holding the general terms in 
 
286 Constitutional History of New York. 
 
 each judicial district. Any justice of the supreme court 
 may hold special terms and circuit courts, and may preside 
 in courts of oyer and terminer, in any county. 
 
 [Const. 1846, art. 6, § 6; 1894, art. 6, § 2. 
 
 In Smith v. People (1872) 47 N. Y. 330, it was held that the or- 
 ganization of courts of oyer and terminer is within the control of 
 the legislature, with the single exception that a justice of the su- 
 preme court must be a member of the court, and must preside. 
 
 The court of oyer and terminer was abolished by the Constitution 
 of 1894, art. 6, § 6.] 
 
 § 8. [Judge not to sit in review of his own deci- 
 sions; proceedings in law and equity.] — No judge or 
 justice shall sit, at a general term of any court, or in 
 the court of appeals, in review of a decision made by 
 him, or by any court of which he was at the time a sitting 
 member. The testimony in equity cases shall be taken 
 in like manner as in cases at law; and except as herein 
 otherwise provided, the legislature shall have the same 
 power to alter and regulate the jurisdiction and pro- 
 ceedings in law and equity that they have heretofore 
 exercised. 
 
 [Const. 1846, art. 6, § 10; 1894, art. 6, § 3.] 
 
 § 9. [Vacancies in supreme court.] — When a va- 
 cancy shall occur, otherwise than by expiration of term, 
 in the office of justice of the supreme court, the same 
 shall be filled, for a full term, at the next general election 
 happening not less than three months after such vacancy 
 occurs ; and until any vacancy shall be so filled, the gov- 
 ernor, by and with the advice and consent of the senate, 
 if the senate shall be in session, or if not in session, the 
 governor, may appoint to fill such vacancy. Any such 
 appointment shall continue until and including the last 
 day of December next after the election at which the 
 vacancy shall be filled. 
 
 [Const. 1821, art. 4, § 7; 1846, art. 6, § 13; 1894, art. 6, §§ 4, 8.] 
 
Amendments from i8/f6 to 1894. 287 
 
 § 10. [Judges not to hold any other office.] — The 
 
 judges of the court of appeals, and the justices of the 
 supreme court, shall not hold any other office or public 
 trust. All votes for any of them, for any other than a 
 judicial office, given by the legislature or the people, shall 
 be void. 
 
 [Const. 1777, art. 28; 1821, art. S, § 7; 1846, art. 6, § 8; 1894, art. 6, 
 I 10.] 
 
 § II. [Removal of judges.] — Judges of the court of 
 appeals and justices of the supreme court may be removed 
 by concurrent resolution of both houses of the legislature, 
 if two thirds of all the members elected to each house 
 concur therein. All judicial officers, except those men- 
 tioned in this section, and except justices of the peace 
 and judges and justices of inferior courts not of record, 
 may be removed by the senate, on the recommendation 
 of the governor, if two thirds of all the members elected 
 to the senate concur therein. But no removal shall be 
 made, by virtue of this section, unless the cause thereof 
 be entered on the journals, nor unless the party com- 
 plained of shall have been served with a copy of the 
 charges against him, and shall have had an opportunity 
 of being heard. On the question of removal, the yeas 
 and nays shall be entered on the journal. 
 
 [Const. 1821, art. i, § 13; Am. 1845; 1846, art. 6, § 11; 1894, art 
 6, § n.] 
 
 § 12. [Certain local courts continued.] — The supe- 
 rior court of the city of New York, the court of common 
 pleas for the city and county of New York, the superior 
 court of Buffalo, and the city court of Brooklyn, are con- 
 tinued with the powers and jurisdiction they now sever- 
 ally have, and such further civil and criminal jurisdic- 
 tion as may be conferred by law. The superior court 
 of New York shall be composed of the six judges in 
 
288 Constitutional History of New York. 
 
 office at the adoption of this article, and their successors. 
 The court of common pleas of New York, of the three 
 judges then in office and their successors, and three ad- 
 ditional judges. The superior court of Buffalo, of the 
 judges now in office, and their successors; and the city 
 court of Brooklyn, of such number of judges, not ex- 
 ceeding three, as may be provided by law. The judges 
 of said courts, in office at the adoption of this article, 
 are continued until the expiration of their terms. A 
 chief judge shall be appointed by the judges of each of 
 said courts, from their own number, who shall act as 
 such during his official term. Vacancies in the office of 
 the judges named in this section, occurring otherwise 
 than by expiration of term, shall be filled in the same 
 manner as vacancies in the supreme court. The legis- 
 lature may provide for detailing judges of the superior 
 court and court of common pleas of New York to hold 
 circuits and special terms of the supreme court in that 
 city, as the public interest may require. 
 
 [New. Amended in 1880. 
 
 The legislature had no power to limit the jurisdiction possessed 
 by the New York superior court at the adoption of this article, and 
 therefore § 263, subd. 5, of the Code of Civil Procedure, was held void. 
 Popfinger v. Yutte (1886) 102 N. Y. 38, 6 N. E. 259, and a like rul- 
 ing was made as to subd. 7 of the same section in Flynn v. Central 
 R. Co. (1894) 142 N. Y. 439, 37 N. E. 514. See this case again in 
 (1891) 27 Abb. N. C. 31, 10 N. Y. Supp. 328. Subd. 2 of this section 
 was held valid in Gemp v. Pratt (1877) 7 Daly, 197. 
 
 The legislature could not extend the territorial jurisdiction of 
 these courts. Landers v. Staten Island R. Co. (1873) 53 N. Y. 450; 
 Hoag V. Lamont (1875) 60 N. Y. 96. 
 
 The legislature could not authorize the superior court to send an 
 action pending therein to the marine court. The superior court 
 could not be authorized to relinquish the jurisdiction conferred upon 
 it by the Constitution. Alexander v. Bennett (1875) 60 N. Y. 204. 
 
 The authority conferred on the marine court in relation to the en- 
 forcement of its executions (L. 1875, chap. 479) was held valid in 
 Feerick v. Connor (1880) 11 N. Y. Week. Dig. 342. 
 
 The legislature had no power to authorize an appeal directly to the 
 court of appeals from a judgment of the general term of the marine 
 
Amendments from 1846 to 1894. 289 
 
 court of New York. When the judiciary article was adopted the 
 court of common pleas had jurisdiction to review judgments of the 
 marine court, and the legislature could not transfer this jurisdiction 
 to another court. Hutkoff v. Demorest (1886) 103 N. Y. 377, 8 N. 
 E. 899. 
 These courts were abolished by the Constitution of 1894,] 
 
 § 13. [Judges, how chosen; term of office.] — Jus- 
 tices of the supreme court shall be chosen by the electors 
 of their respective judicial districts. Judges of all the 
 courts mentioned in the last preceding section shall be 
 chosen by the electors of the cities respectively in which 
 the said courts are instituted. The official terms of the 
 said justices and judges who shall be elected after the 
 adoption of this article shall be fourteen years from and 
 including the first day of January next after their elec- 
 tion. But no person shall hold the office of justice or 
 judge of any court longer than until and including the 
 last day of December next after he shall be seventy years 
 of age. 
 
 [Const. 1821, art. S, § 55 1846, art. 6, §§ 4, 7; Am. in 188a, adding 
 provision for judicial pension; 1894, art. 6,, §§ 1-12. 
 
 The age limit prescribed by this section was held to apply to a 
 county judge, but a county judge who was in office when the article 
 took effect, January i, 1870, was not affected by it, but might hold 
 through the term for which he was chosen. People ex rel. Davis v. 
 Gardner (1871) 4S N. Y. 812.] 
 
 § 14. [Compensation of judges.] — The judges and 
 justices hereinbefore mentioned shall receive for their 
 services a compensation to be established by law, which 
 shall not be diminished during their official terms. Ex- 
 cept the judges of the court of appeals and the justices 
 of the supreme court, they shall be paid, and the ex- 
 penses of their courts defrayed, by the cities or counties 
 in which such courts are instituted, as shall be provided 
 by law. 
 
 [Const. 1846, art. 6, §§ 13, 14; 1894, art. 6, § 12.] 
 Vol. I. Const. Hist. — 19. 
 
290 Constitutional History of New York. 
 
 § 15. [Cotinty courts.] — The existing county 
 courts are continued, and the judges thereof in office 
 at the adoption of this article shall hold their offices 
 until the expiration of their respective terms. Their 
 successors shall be chosen by the electors of the counties 
 for the term of six years. The county courts shall have 
 the powers and jurisdiction they now possess, until 
 altered by the legislature. They shall also have original 
 jurisdiction in all cases where the defendants reside in 
 the county and in which the damages claimed shall not 
 exceed one thousand dollars; and also such appellate 
 jurisdiction as shall be provided by law, subject, how- 
 ever, to such provision as shall be made by law for the 
 removal of causes into the supreme court. They shall 
 also have such other original jurisdiction as shall, from 
 time to time, be conferred upon them by the legislature. 
 The county judge, with two justices of the peace, to be 
 designated according to law, may hold courts of sessions, 
 with such criminal jurisdiction as the legislature shall 
 prescribe, and he shall perform such other duties as may 
 be required by law. His salary, and the salary of the 
 surrogate when elected as a separate officer, shall be 
 established by law, payable out of the county treasury, 
 and shall not be diminished during his term of office. 
 The justices of the peace shall be paid, for services in 
 courts of sessions, a per diem allowance out of the county 
 treasury. The county judge shall also be surrogate of 
 his county ; but in counties having a population exceeding 
 forty thousand, the legislature may provide for the elec- 
 tion of a separate officer to be surrogate, whose term 
 of office shall be the same as that of the county judge. 
 The county judge of any county may preside at courts 
 of sessions, or hold county courts, in any other county 
 
Amendments from 1846 to 1894. 291 
 
 except New York and Kings, when requested by the 
 judge of such other county. 
 
 [Const. 1777, art. 24; 1821, art. 5, § 6; 1846, art. 6, § 15; 1894, art. 6, 
 §§ 14, 15, 18. 
 
 The new judiciary article took effect generally on the ist of Janu- 
 ary, 1870. A county judge elected at the November election in 1869 
 for a term of four years, beginning on the ist of January, 1870, was 
 therefore in office when the new judiciary article took effect, and 
 was entitled to continue in office for the term for which he was 
 elected. People ex rel. D<wis v. Gardner (1871) 45 N. Y. 812; Peo- 
 ple ex rel. Clark v. Norton (1871) 59 Barb. i6g.] 
 
 § 16. [Special county judge and surrogate.] — The 
 
 legislature may, on application of the board of super- 
 visors, provide for the election of local officers, not to 
 exceed two in any county, to discharge the duties of 
 county judge and of surrogate, in cases of their inability, 
 or of a vacancy, and to exercise such other powers in 
 special cases as may be provided by law. 
 
 [Const. 1846, art. 6, § 15; 1894, art. 6, § 16.] 
 
 § 17. [People may determine that judges shall be 
 appointed.] — The legislature shall provide for sub- 
 mitting to the electors of the state, at the general election 
 in the year eighteen hundred and seventy-three, two ques- 
 tions, to be voted upon on separate ballots, as follows : 
 First, "Shall the offices of chief judge and associate 
 judge of the court of appeals, and of justice of the 
 supreme court, be hereafter filled by appointment?" If 
 a majority of the votes upon the question shall be in 
 the affirmative, the said officers shall not thereafter be 
 elective, but, as vacancies occur, they shall be filled by 
 appointment by the governor, by and with the advice 
 and consent of the senate ; or, if the senate be not in ses- 
 sion, by the governor ; but in such case, he shall nominate 
 to the senate when next convened, and such appointment 
 
292 Constitutional History of New York. 
 
 by the governor alone shall expire at the end of the 
 session. Second, "Shall the offices of the judges, men- 
 tioned in sections twelve and fifteen of article six of the 
 Constitution, be hereafter filled by appointment?" If a 
 majority of the votes upon the question shall be in the 
 affirmative, the said officers shall not thereafter be elec- 
 tive, but, as vacancies occur, they shall be filled in the 
 manner in this section above provided. 
 
 [See the chapter on the Convention of 1867 for a sketch of this 
 provision. The question was submitted to the people in 1873, and 
 answered in the negative. New.] 
 
 § 18. [Justices of the peace.] — The electors of the 
 several towns shall, at their annual town meeting, and 
 in such manner as the legislature may direct, elect justices 
 of the peace, whose term of office shall be four years. In 
 case of an election to fill a vacancy occurring before the 
 expiration of a full term, they shall hold for the residue 
 of the unexpired term. Their number and classification 
 may be regulated by law. Justices of the peace, and 
 judges or justices of inferior courts, not of record, and 
 their clerks, may be removed, after due notice and an 
 opportunity of being heard, by such courts as may be 
 prescribed by law, for causes to be assigned in the order 
 of removal. Justices of the peace and district court 
 justices shall be elected in the different cities in this 
 state, in svich manner, and with such powers, and for 
 such terms, respectively, as shall be prescribed by law; 
 all other judicial officers in cities, whose election or ap- 
 pointment is not otherwise provided for in this article, 
 shall be chosen by the electors of cities, or appointed by 
 some local authorities thereof. 
 
 [Const. 1777, art. 24; 1821, art. 4, § 7; Am. 1826; 1846, 1894, art. 
 6, § 18.] 
 
Amendments from 1846 to 18^4. 293 
 
 § 19. [Inferior local courts.] — Inferior local courts 
 of civil and criminal jurisdiction may be established by 
 the legislature ; and, except as herein otherwise provided, 
 all judicial officers shall be elected or appointed at such 
 times, and in such manner, as the legislature may direct. 
 
 [Const. 1821, art. 4. § 4i ; 1846, art. 6, § 18; 1894, art. 6, §§ 17, 18.] 
 
 § 20. [Clerks of supreme court; clerk of court of 
 appeals.] — Clerks of the several counties shall be 
 clerks of the supreme court, with such powers and duties 
 as shall be prescribed by law. The clerk of the court 
 of appeals shall keep his office at the seat of government. 
 His compensation shall be fixed by law, and paid out 
 of the public treasury. 
 
 [Const. 1821, art. 4, § 9; 1846, art. 6, § 19; 1894, art. 6, § 19.] 
 
 § 21. [Judges not to receive fees or practise as at- 
 torneys.] — No judicial officer, except justices of the 
 peace, shall receive to his own use any fees or perquisites 
 of office; nor shall any judge of the court of appeals, 
 justice of the supreme court, or judge of a court of 
 record in the cities of New York, Brooklyn, or Buffalo, 
 practise as an attorney or counselor in any court of record 
 in this state, or act as referee. 
 
 [Const. 1846, art. 6, § 20; 1894, art. 6, § 20.] 
 
 § 22. [Judgments of inferior courts may be re- 
 moved to court of appeals for review.] — The legisla- 
 ture may authorize the judgments, decrees, or decisions of 
 any court of record of original civil jurisdiction, estab- 
 lished in a city, to be removed for review, directly into 
 the court of appeals. 
 
 [Const 1846, art. 6, § 21.] 
 
294 Constitutional History of New York. 
 
 § 23. [Publication of statutes; supreme court re- 
 porters.] — The legislature shall provide for the 
 speedy publication of all statutes, and also for the ap- 
 pointment by the justices of the supreme court desig- 
 nated to hold general terms, of a reporter of the decisions 
 of that court. All laws and judicial decisions shall be 
 free for publication by any person. 
 
 [Const 1&4.6, art. 6, § 22; 1894, art. 6, § 21.] 
 
 § 24. [First election of judges.] — The first election 
 of judges of the court of appeals, and of the three addi- 
 tional judges of the court of common pleas for the city 
 and county of New York, shall take place on such day, 
 between the first Tuesday of April and the second Tues- 
 day in June next after the adoption of this article, as 
 may be provided by law. The court of appeals, the com- 
 missioners of appeals, and the additional judges of the 
 said court of common pleas, shall respectively enter upon 
 their duties on the first Monday of July thereafter. 
 
 [New; temporary.] 
 
 § 25. [Certain officers to continue until expiration 
 of term.] — Surrogates, justices of the peace, and local 
 judicial officers provided for in section sixteen, in office 
 when this article shall take efifect, shall hold their respec- 
 tive offices until the expiration of their terms. 
 
 [New; temporary.] 
 
 § 26. [Special sessions.] — Courts of special sessions 
 shall have such jurisdiction of offenses of the grade of 
 misdemeanors as may be prescribed by law. 
 
 [Const. 1894, art. 6, § 23.] 
 
Amendments from 1846 to 1894. 295 
 
 § 27. [Relief of surrogates' courts,] — For the relief 
 of surrogates' courts, the legislature may confer upon 
 courts of record, in any county having a population ex- 
 ceeding four hundred thousand, the powers and jurisdic- 
 tion of surrogates, with authority to try issues of fact 
 by jury in probate causes. 
 
 [New.] 
 
 B. THE AMENDMENTS OF 1874. 
 
 [The Commission of 1872 reported numerous amendments to the 
 legislature of 1873. Some were rejected, but the larger part were 
 agreed to with some modifications. The legislature of 1874 omitted 
 some provisions agreed to in 1873, and the final result was submitted 
 to the people and adopted at the general election in November, 1874. 
 Amendments to the provisions thus adopted are noted in group C, 
 and in the Constitution of 1894. 
 
 It was evidently the intention of the Commission and the legis- 
 lature to amend § l of article 3 — "The legislative power of this state 
 shall be vested in a senate and assembly" — ^by inserting "an" before 
 "assembly." This word appears in the section as reported by the 
 Commission, and as agreed to by the legislatures of 1873 and 1874, 
 and the section is included in the statute submitting the amendments ; 
 but "an" was omitted in the engrossed copy of the amendments filed 
 in the office of the secretary of state. The section there appears in its 
 original form, without the amendment, and it was so submitted to the 
 people, who therefore did not vote on the section in the form agreed 
 to by the legislature.] 
 
 Art. 2, § I. [Qualifications of voters.] — Every male 
 citizen of the age of twenty-one years who shall have 
 been a citizen for ten days and an inhabitant of this 
 state one year next preceding an election, and for the 
 last four months a resident of the county, and for the 
 last thirty days a resident of the election district in which 
 he may offer his vote, shall be entitled to vote at such 
 election in the election district of which he shall at the 
 time be a resident, and not elsewhere, for alj officers 
 that now are or hereafter may be elective by the people, 
 and upon all questions which may be submitted to the 
 
296 Constitutional History of New York. 
 
 vote of the people, provided that in time of war no elector 
 in the actual military service of the state, or of the United 
 States, in the Army or Navy thereof, shall be deprived 
 of his vote by reason of his absence from such election 
 district; and the legislature shall have power to provide 
 the manner in which, and the time and place at which, 
 such absent electors may vote, and for the return and 
 canvass of their votes in the election districts in which 
 they respectively reside. 
 
 [Const. 1777, art. 7; 1821, art. », § i; 1846, 1894, art 2, § I.] 
 
 Art. 2, § 2. [Bribery at elections.] — No person who 
 shall receive, expect, or offer to receive, or pay, offer, or 
 promise to pay, contribute, offer, or promise to contribute 
 to another, to be paid or used, any money or other valu- 
 able thing as a compensation or reward for the giving 
 or withholding a vote at an election, or who shall make 
 any promise to influence the giving or withholding any 
 such vote, or who shall make or become directly or indi- 
 rectly interested in any bet or wager depending upon the 
 result of any election, shall vote at such election; and 
 upon challenge for such cause, the person so challenged, 
 before the officers authorized for that purpose shall re- 
 ceive his vote, shall swear or affirm before such officers 
 that he has not received or offered, does not expect to 
 receive, has not paid, offered, or promised to pay, con- 
 tributed, offered, or promised to contribute to another, 
 to be paid or used, any money or other valuable thing 
 as a compensation or reward for the giving or with- 
 holding a vote at such election, and has not made any 
 promise to influence the giving or withholding of any 
 such vote, nor made or become directly or indirectly in- 
 terested in any bet or wager depending upon the result 
 of such election. The legislature, at the session thereof 
 next after the adoption of this section, shall, and from 
 
Amendments from 1846 to 1894. 297 
 
 time to time thereafter may, enact laws excluding from 
 the right of suffrage all persons convicted of bribery or 
 of any infamous crime. 
 
 [Const. 1821, art 2, § 2; 1846, 1894, art. 2, § 2.] i 
 
 Art. 3, § 5. [Assembly reapportionment.] — The as- 
 sembly shall consist of one hundred and twenty-eight 
 members, elected for one year. The members of assembly 
 shall be apportioned among the several counties of the 
 state, by the legislature, as nearly as may be, according 
 to the number of their respective inhabitants, excluding 
 aliens, and shall be chosen by single districts. The as- 
 sembly districts shall remain as at present organized, 
 until after the enumeration of the inhabitants of the 
 state, in the year eighteen hundred and seventy-five. The 
 legislature, at its first session after the return of every 
 enumeration, shall apportion the members of assembly 
 among the several counties of the state, in manner afore- 
 said, and the board of supervisors in such counties as 
 may be entitled under such apportionment to more than 
 one member, except the city and county of New York, 
 and in said city and county the board of aldermen of 
 said city, shall assemble at such time as the legislature 
 making such apportionment shall prescribe, and divide 
 their respective counties into assembly districts, each of 
 which districts shall consist of convenient and contiguous 
 territory, equal to the number of members of assembly 
 to which such counties shall be entitled, and shall cause 
 to be filed in the offices of the secretary of state and 
 the clerks of their respective counties a description of 
 such districts, specifying the number of each district 
 and the population thereof, according to the last preced- 
 ing enumeration, as near as can be ascertained, and the 
 apportionment and districts shall remain unaltered until 
 another enumeration shall be made as herein provided. 
 
298 Constitutional History of New York. 
 
 No town shall be divided in the formation of assembly 
 districts. Every county heretofore established and sep- 
 arately organized, except the county of Hamilton, shall 
 always be entitled to one member of the assembly, and 
 no new county shall be hereafter erected, unless its popu- 
 lation shall entitle it to a member. The county of Ham- 
 ilton shall elect with the county of Fulton, until the 
 population of the county of Hamilton shall, according 
 to the ratio, be entitled to a member. But the legislature 
 may abolish the said county of Hamilton, and annex 
 the territory thereof to some other county or counties. 
 Nothing in this section shall prevent division at any time 
 of counties and towns, and the erection of new towns 
 and counties by the legislature. 
 
 [New section. Const. 1777, art. s ; 1821, art. i, § 7 ; 1846, 1894, art. 
 3, §§ 4, S.] 
 
 Art. 3, § 6. [Compensation of members of legisla- 
 ture.] — Each member of the legislature shall receive 
 for his services an annual salary of one thousand five 
 hundred dollars. The members of either house shall 
 also receive the sum of one dollar for every ten miles 
 they shall travel, in going to and returning from their 
 place of meeting, once in each session, on the most usual 
 route. Senators, when the senate alone is convened in 
 extraordinary session, or when serving as members of 
 the court for the trial of impeachments, and such mem- 
 bers of the assembly, not exceeding nine in number, as 
 shall be appointed managers of an impeachment, shall 
 receive an additional allowance of ten dollars a day. 
 
 [Const. 1821, art. i, § 9; 1846, 1894, art. 3, § 6.] 
 
 Art. 3, § 7. [Member of legislature not eligible to 
 certain appointments.] — No member of the legisla- 
 ture shall receive any civil appointment within this state, 
 
Amendments from 1846 to 1894. 299 
 
 or the Senate of the United States, from the governor, 
 the governor and senate, or from the legislature, or 
 from any city government during the time for which 
 he shall have been elected; and all such appointments 
 and all votes given for any such member for any such 
 office or appointment shall be void. 
 
 [Const 1821, art. i, § 10; 1846, 1894 art. 3, § 7.] 
 
 Art. 3, § 8. [Certain Federal and city officers dis- 
 qualified as members.] — No person shall be eligible 
 to the legislature who, at the time of his election, is, or 
 within one hundred days previous thereto has been, a 
 member of Congress, a civil or military officer under 
 the United States, or any officer under any city govern- 
 ment. And if any person shall, after his election as a 
 member of the legislature, be elected to Congress, or 
 appointed to any office, civil or military, under the gov- 
 ernment of the United States, or under any city govern- 
 ment, his acceptance thereof shall vacate his seat. 
 
 [Const. 1821, art. i, § 11; 1846, art. 3, § 8; 1894, art. 3, § 8.] 
 
 Art. 3, § 17. [Existing laws not applicable by ref- 
 erence.] — No act shall be passed which shall provide 
 that any existing law, or any part thereof, shall be made 
 or deemed a part of said act, or which shall enact that 
 any existing law, or any part thereof, shall be applicable, 
 except by inserting it in such act. 
 
 [New. Const. 1894, art. 3, § 17.] 
 
 Art. 3, § 18. [Private and local bills limited; street 
 railroads.] — The legislature shall not pass a private 
 or local bill in any of the following cases : 
 
 Changing the names of persons. 
 
 Laying out, opening, altering, working, or discontinu- 
 
300 Constitutional History of New York. 
 
 ing roads, highways, or alleys, or for draining swamps 
 or other low lands. 
 
 Locating or changing county seats. 
 
 Providing for changes of venue in civil or criminal 
 cases. 
 
 Incorporating villages. 
 
 Providing for election of members of boards of super- 
 visors. 
 
 Selecting, drawing, summoning, or impaneling grand 
 or petit jurors. 
 
 Regulating the rate of interest on money. 
 
 The opening and conducting of elections or designating 
 places of voting. 
 
 Creating, increasing, or decreasing fees, percentage, 
 or allowances of public officers during the term for which 
 said officers are elected or appointed. 
 
 Granting to any corporation, association, or individual 
 the right to lay down railroad tracks. 
 
 Granting to an}^ private corporation, association, or 
 individual any exclusive privilege, immunity, or fran- 
 chise whatever. 
 
 Providing for building bridges, and chartering com- 
 panies for such purposes, except on the Hudson river 
 below Waterford, and on the East river, or over the 
 waters forming a part of the boundaries of the state. 
 
 The legislature shall pass general laws providing for 
 the cases enumerated in this section, and for all other 
 cases which, in its judgment, may be provided for by 
 general laws. But no law shall authorize the construc- 
 tion or operation of a street railroad except upon the 
 condition that the consent of the owners of one half in 
 value of the property boimded on, and the consent also 
 of the local authorities having the control of, that portion 
 of a street or highway upon which it is proposed to 
 construct or operate such railroad, be first obtained, or. 
 
Amendments from 1846 to 1894. 3°^ 
 
 in case the consent of such property-owners cannot be 
 obtained, the general term of the supreme court, in the 
 district in which it is proposed to be constructed, may, 
 upon application, appoint three commissioners, who shall 
 determine, after a hearing of all parties interested, 
 whether such railroad ought to be constructed or oper- 
 ated, and their determination, confirmed by the court, 
 may be taken in lieu of the consent of the property- 
 owners. 
 
 [New. Const. 1894, art. 3, I 18; Am. 1901.] 
 
 Art 3, § 19. [Private claims not to be audited by 
 legislature.] — The legislature shall neither audit nor 
 allow any private claim or account against this state, but 
 may appropriate money to pay such claims as shall have 
 been audited and allowed according to law. 
 
 ' [Const. 1894, art. 3, § 19.] 
 
 Art. 3, § 20. [Tax law to state amount and object 
 of tax.] — Every law which imposes, continues, or re- 
 vives a tax shall distinctly state the tax and the object to 
 which it is to be applied, and it shall not be sufficient to 
 refer to any other law to fix such tax or object. 
 
 [In the original Constitution of 1846 this section was § 13 of 
 article 7. It was transferred to this article by the amendments of 
 1874. Const. 1894, art. 3, § 24.] 
 
 Art 3, § 21. [Three-fifths bills.] — On the final pas- 
 sage, in either house of the legislature, of any act which 
 imposes, continues, or revives a tax, or creates a debt 
 or charge, or makes, continues, or revives any appropria- 
 tion of public or trust money or property, or releases, 
 discharges, or commutes any claim or demand of the 
 state, the question shall be taken by yeas and nays, which 
 
302 Constitutional History of New York. 
 
 shall be duly entered upon the journals, and three fifths 
 of all the members elected to either house shall, in all 
 such cases, be necessary to constitute a quorum therein. 
 
 [In the original Constitution of 1846 this section was § 14 oi 
 article 7. It was transferred to this article by the amendments of 
 1874. Const. 1894, art 3, § 25.] 
 
 Art. 3, § 22. [Boards of supervisors.] — There shall 
 be, in the several counties, except in cities whose bound- 
 aries are the same as those of the county, a board of 
 supervisors, to be composed of such members, and elected 
 in such manner, and for such period, as is or may be 
 provided by law. In any such city the duties and powers 
 of a board of supervisors may be devolved upon the 
 common council or board of aldermen thereof. 
 
 [Const 1894 art 3, § 26; Am. 1899.] 
 
 Art. 3, § 23. [Powers of boards of supervisors.] — 
 
 The legislature shall, by general laws, confer upon the 
 boards of supervisors of the several counties of the state 
 such further powers of local legislation and administra- 
 tion as the legislature may, from time to time, deem ex- 
 pedient. 
 
 [This is a substitute, adopted in 1874, for § 17 in the original 
 Constitution of 1846. Const. 1894, art. 3, § 27.] 
 
 Art. 3, § 24. [Extra compensation prohibited.] — 
 
 The legislature shall not, nor shall the common council 
 of any city, nor any board of supervisors, grant any 
 extra compensation to any public officer, servant, agent, 
 or contractor. 
 
 [Const 1894, art. 3, § 28.] 
 
 Art. 3, § 25. [Statutory revision commission bills 
 excepted from §§ 17 and 18.] — Sections seventeen 
 
Amendments from 1846 to i8p4. 303 
 
 and eighteen of this article shall not apply to any bill, or 
 the amendments to any bill, which shall be reported to 
 the legislature by commissioners who have been ap- 
 pointed pursuant to law to revise the statutes. 
 
 [Const. 1894, art. 3, I 23.] 
 
 Art. 4, § I. [Governor and lieutenant governor.] — 
 The executive power shall be vested in a governor, who 
 shall hold his office for three years ; a lieutenant governor 
 shall be chosen at the same time, and for the same term. 
 The governor and lieutenant governor elected next pre- 
 ceding the time when this section shall take effect shall 
 hold office during the term for which they were elected. 
 
 [This amendment extends to three years the term of the governor 
 and lieutenant governor, beginning with those elected in 1876. The 
 term was again reduced to two years in 1894, art. 4, § i. Const 
 1777, art 17, 20; 1821, art 3, i i; 1846; art. 4, § i.] 
 
 Art. 4, § 2. [Qualifications of governor and lieu- 
 tenant governor.] — No person shall be eligible to the 
 office of governor or lieutenant governor, except a citizen 
 of the United States, of the age of not less than thirty 
 years, and who shall have been five years, next preceding 
 his election, a resident of this state. 
 
 [Const 1777, art 17; 1821, art 3. § 2; 1846, 1894, art. 4, § 2.] 
 
 Art. 4, § 4. [Governor's general powers; compen- 
 sation.] — The governor shall be commander-in-chief 
 of the military and naval forces of the state. He shall 
 have power to convene the legislature (or the senate 
 only) on extraordinary occasions. At extraordinary ses- 
 sions no subject shall be acted upon, except such as the 
 governor may recommend for consideration. He shall 
 communicate by message to the legislature, at every ses- 
 
304 Constitutional History of New York. 
 
 sion, the condition of the state, and recommend such 
 matters to them as he shall judge expedient. He shall 
 transact all necessary business with the officers of gov- 
 ernment, civil and military. He shall expedite all such 
 measures as may be resolved upon by the legislature, and 
 shall take care that the laws are faithfully executed. He 
 shall receive for his services an annual salary of ten 
 thousand dollars, and there shall be provided for his use 
 a suitable and furnished executive residence. 
 
 [Const. 1777, art. 18; 1821, art. 3, § 4; 1846, 1894, art. 4, § 4.] 
 
 Art. 4, 1 8. [Lieutenant governor's compensation.] 
 
 — The lieutenant governor shall receive for his serv- 
 ices an annual salary of five thousand dollars, and shall 
 not receive or be entitled to any other compensation, 
 fee, or perquisite for any duty or service he may be re- 
 quired to perform by the Constitution or by law. 
 
 [Const. 1846, 1894, art. 4, § 8.] 
 
 Art. 4, § 9. [Executive consideration of bills ; sub- 
 sequent legislative action.] — Every bill which shall 
 have passed the senate and assembly shall, before it be- 
 comes a law, be presented to the governor ; if he approve 
 he shall sign it; but if not, he shall return it with his 
 objections to the house in which it shall have originated, 
 which shall enter the objections at large on the journal, 
 and proceed to reconsider it. If, after such reconsidera- 
 tion, two thirds of the members elected to that house 
 shall agree to pass the bill, it shall be sent, together with 
 the objections, to the other house, by which it shall like- 
 wise be reconsidered; and if approved by two thirds of 
 the members elected to that house, it shall become a law 
 notwithstanding the objections of the governor. In all 
 such cases, the votes in both houses shall be determined 
 
Amendments from 1846 to 1894. 305 
 
 by yeas and nays, and the names of the members voting 
 shall be entered on the journal of each house respectively. 
 If any bill shall not be returned by the governor within 
 ten days (Sundays excepted) after it shall have been 
 presented to him, the same shall be a law in like manner 
 as if he had signed it, unless the legislature shall, by their 
 adjournment, prevent its return; in which case it shall 
 not become a law without the approval of the governor. 
 No bill shall become a law after the final adjournment 
 of the legislature, unless approved by the governor within 
 thirty days after such adjournment. If any bill presented 
 to the governor contain several items of appropriation of 
 money, he may object to one or more of such items while 
 approving of the other portion of the bill. In such case, 
 he shall append to the bill, at the time of signing it, a 
 statement of the items to which he objects; and the ap- 
 propriation so objected to shall not take effect. If the 
 legislature be in session, he shall transmit to the house 
 in which the bill originated a copy of such statement, 
 and the items objected to shall be separately reconsidered. 
 If, on reconsideration, one or more of such items be ap- 
 proved by two thirds of the members elected to each 
 house, the same shall be part of the law, notwithstanding 
 the objections of the governor. All the provisions of 
 this section, in relation to bills not approved by the gov- 
 ernor, shall apply in cases in which he shall withhold 
 his approval from any item or items contained in a bill 
 appropriating money. 
 
 [Const. 1777, art. 3; 1821, art. i, § 12; 1846, 1894, art. 4, § 9.] 
 
 Art. 7, § 3. [Canal revenues.] — As amended in 
 1854, further amended by adding at the end the following 
 clause : 
 
 No extra compensation shall be made to any contractor ; 
 but if, from any unforeseen cause, the terms of any con- 
 VoL. I. Const. Hist.— 20. 
 
3o6 Constitutional History of New York. 
 
 tract shall prove to be unjust and oppressive, the canal 
 board may, upon the application of the contractor, cancel 
 such contract. 
 
 [Am. in 1882; Const. 1894, art. 7, § 9.] 
 
 Art. 7, § 6. [Canals not to be disposed of; expendi- 
 tures and revenues.] — The legislature shall not sell, 
 lease, or otherwise dispose of the Erie canal, the Oswego 
 canal, the Champlain canal, or the Cayuga and Seneca 
 canal; but they shall remain the property of the state, 
 and under its management forever. Hereafter the ex- 
 penditures for collections, superintendence, ordinary and 
 extraordinary repairs on the canals named in this section, 
 shall not exceed, in any year, their gross receipts for the 
 previous year. All funds that may be derived from any 
 lease, sale, or other disposition of any canal, shall be 
 applied in payment of the debt for which the canal rev- 
 enues are pledged. 
 
 [Const. 1846, art. 7, § 6; Am. in 1882; 1894, art. 7, § 8.] 
 
 Art. 7, § 13. [State sinking funds to be kept sepa- 
 rate.] — The sinking funds provided for the payment 
 of interest and the extinguishment of the principal of 
 the debts of the state shall be separately kept and safely 
 invested, and neither of them shall be appropriated or 
 used in any manner other than for the specific purpose 
 for which it shall have been provided. 
 
 [New. Const. 1894, art 7, § 5.] 
 
 Art. 7, § 14. [Restriction on allowance of claims 
 against state.] — Neither the legislature, canal board, 
 canal appraisers, nor any person or persons acting in 
 behalf of the state, shall audit, allow, or pay any claim 
 which, as between citizens of the state, would be barred 
 
Amendments from 1846 to iSp4, 307 
 
 by lapse of time. The limitation of existing claims shall 
 begin to run from the adoption of this section ; but this 
 provision shall not be construed to revive claims already- 
 barred by existing statutes, nor to repeal any statute 
 fixing the time within which claims shall be presented 
 or allowed, nor shall it extend to any claims duly pre- 
 sented within the time allowed by law, and prosecuted 
 with due diligence from the time of such presentment. 
 But if the claimant shall be under legal disability, the 
 claim may be presented within two years after such dis- 
 ability is removed. 
 
 [New. Const. 1894, art. 7, § 6.] 
 
 Art. 8, § 4. [Savings banks.] — The legislature shall, 
 by general law, conform all charters of savings banks, 
 or institutions for savings, to a uniformity of powers, 
 rights, and liabilities, and all charters hereafter granted 
 for such corporations shall be made to conform to such 
 general law, and to such amendments as may be made 
 thereto. And no such corporation shall have any capital 
 stock, nor shall the trustees thereof, or any of them, have 
 any interest whatever, direct or indirect, in the profits of 
 such corporation; and no director or trustee of any such 
 bank or institution shall be interested in any loan or use 
 of any money or property of such bank or institution 
 for savings. The legislature shall have no power to 
 pass any act granting any special charter for banking 
 purposes ; but corporations or associations may be formed 
 for such purposes under general laws. 
 
 [Consts. 1846, 1894, art. 8, § 4.] 
 
 Art. 8, § ID. [No state aid to individuals or corpora- 
 tions.] — Neither the credit nor the money of the state 
 shall be given or loaned to or in aid of any association. 
 
3o8 Constitutional History of New York. 
 
 corporation, or private undertaking. This section shall 
 not, however, prevent the legislature from making such 
 provision for the education and support of the blind, 
 the deaf and dumb, and juvenile delinquents, as to it 
 may seem proper. Nor shall it apply to any fund or 
 property now held, or which may hereafter be held, by 
 the state for educational purposes. 
 
 [New. Const. 1846, art. 7, § 9; 1894, art. 8, § 9.] 
 
 Art. 8, § II. [Municipal aid prohibited, except for 
 public purposes.] — No county, city, town, or village 
 shall hereafter give any money or property, or loan its 
 money or credit, to or in aid of any individual, associa- 
 tion, or corporation, or become, directly or indirectly, 
 the owner of stock in or bonds of any association or 
 corporation, nor shall any such county, city, town, or' 
 village be allowed to incur any indebtedness, except for 
 county, city, town, or village purposes. This section 
 shall not prevent such county, city, town, or village from 
 making such provision for the aid or support of its poor 
 as may be authorized by law. 
 
 [Am. 1884; Const. 1894, art. 8, § 10; Am. 1899.] 
 
 Art. 10, § g. [Constitutional officers not to receive 
 extra compensation.] — No officer whose salary is 
 fixed by the Constitution shall receive any additional 
 compensation. Each of the other state officers named 
 in the Constitution shall, during his continuance in office, 
 receive a compensation, to be fixed by law, which shall 
 not be increased or diminished during the term for which 
 he shall have been elected or appointed; nor shall he 
 receive to his use, any fees or perquisites of office or 
 other compensation. 
 
 [New. Const. 1894, art. 10, § 9.] 
 
Amendments from 184.6 to 1894. 2P9 
 
 Art. 12, § I. [Oath of office.] — Members of the leg- 
 islature (and all officers, executive and judicial, except 
 such inferior officers as shall be by law exempted) shall, 
 before they enter on the duties of their respective offices, 
 take and subscribe the following oath or affirmation: 
 "I do solemnly swear (or affirm) that -I will support 
 the Constitution of the United States, and the Constitu- 
 tion of the state of New York, and that I will faithfully 
 discharge the duties of the office of , according 
 
 to the best of my ability;" and all such officers who 
 shall have been chosen at any election shall, before they 
 enter on the duties of their respective offices, take and 
 subscribe the oath or affirmation above prescribed, to- 
 gether with the following addition thereto, as part 
 thereof : 
 
 "And I do further solemnly swear (or affirm) that I 
 have not, directly or indirectly, paid, offered, or promised 
 to pay, contributed, or offered or promised to contribute, 
 any money or other valuable thing as a consideration 
 or reward for the giving or withholding a vote at the 
 election at which I was elected to said office, and have 
 not made any promise to influence the giving or with- 
 holding any such vote," and no other oath, declaration, 
 or test shall be required as a qualification for any office 
 of public trust. 
 
 [Qjnst. 1821, art. 6, § i ; 1846, art 12 ; 1894, art. 13, § I.] 
 
 Art. 15, § I. [Bribery of public officers.] — Any per- 
 son holding office under the laws of this state, who, except 
 in payment of his legal salary, fees, or perquisites, shall 
 receive, or consent to receive, directly or indirectly, any 
 thing of value or of personal advantage, or the promise 
 thereof, for performing or omitting to perform any 
 official act, or with the express or implied understanding 
 that his official action or omission to act is to be in any 
 
310 Constitutional History of New York. 
 
 degree influenced thereby, shall be deemed guilty of a 
 felony. This section shall not affect the validity of any 
 existing statutes in relation to the offense of bribery. 
 
 [New. Const. 1894, art. 13, § 2.] 
 
 Art. 15, § 2. [Bribery, how punished.] — Any per- 
 son who shall offer or promise a bribe to an officer, if 
 it shall be received, shall be deemed guilty of a felony 
 and liable to punishment, except as herein provided. No 
 person offering a bribe shall, upon any prosecution of 
 the officer for receiving such bribe, be privileged from 
 testifying in relation thereto, and he shall not be liable 
 to civil or criminal prosecution therefor, if he shall testify 
 to the giving or offering of such bribe. Any person 
 who shall offer or promise a bribe, if it be rejected by 
 the officer to whom it is tendered, shall be deemed guilty 
 of an attempt to bribe, which is hereby declared to be a 
 felony. 
 
 [New. Const. 1894, art. 13, § 3.] 
 
 Art. IS, § 3. [Accused a competent witness in his 
 own behalf.] — Any person charged with receiving a 
 bribe, or with offering or promising a bribe, shall be 
 permitted to testify in his own behalf in any civil or 
 criminal prosecution therefor. 
 
 [New. Const. 1894, art. 13, § 4.] 
 
 Art. 15, § 4. [Delinquent district attorney may be 
 removed from office.] — Any district attorney who 
 shall fail faithfully to prosecute a person charged with 
 the violation, in his county, of any provision of this 
 article which may come to his knowledge, shall be re- 
 moved from office by the governor, after due notice and 
 an opportunity of being heard in his defense. The ex- 
 
Amendments from 184.6 to 1894. 311 
 
 penses which shall be incurred by any county, in investi- 
 gating and prosecuting any charge of bribery or attempt- 
 ing to bribe any person holding office under the laws of 
 this state, within such county, or of receiving bribes by 
 any such person in said county, shall be a charge against 
 the state, and their payment by the state shall be provided 
 for by law. 
 
 [New. Const. 1894, art. 13, § 6.] 
 
 Art. 16, § I, [When amendments to take effect.] — 
 
 All amendments to the Constitution shall be in force 
 from and including the first day of January succeeding 
 the election at which the same were adopted, except 
 when otherwise provided by such amendments. 
 
 [New. Const. 1894, art. 14, § 2.] 
 
 C. MISCELLANEOUS AMENDMENTS. 
 
 [These amendments are arranged in the order of articles and sec- 
 tions, and according to the date of adoption, with references to 
 prior or subsequent provisions on the same subject.] 
 
 ARTICLE II. 
 [Suffrage.] 
 
 § I. 1864. [Qualifications of voters.] — ^The follow- 
 ing provision, relating to the right of soldiers to vote 
 while absent from home, was added : 
 
 Provided, That in time of war no elector in the actual 
 military service of the United States, in the Army or 
 Navy thereof, shall be deprived of his vote by reason of 
 his absence from the state ; and the legislature shall have 
 power to provide the manner in which, and the time 
 and places at which, such absent electors may vote, and 
 
312 Constitutional History of New York. 
 
 for the canvass and returns of their votes, in the election 
 districts in which they respectively reside, or otherwise. 
 
 [Am. of 1874; Const. 1894, art. 2, § i.] 
 
 ARTICLE V. 
 [State Officers.] 
 
 § 3. 1876. [Superintendent of public works.] — A 
 
 superintendent of public works shall be appointed by 
 the governor, by and with the advice and consent of 
 the senate, and hold his ofi&ce until the end of the term 
 of the governor by whom he was nominated, and until 
 his successor is appointed and qualified. He shall re- 
 ceive a compensation to be fixed by law. He shall be 
 required by law to give security for the faithful execu- 
 tion of his office before entering upon the duties thereof. 
 He shall be charged with the execution of all laws relat- 
 ing to the repair and navigation of the canals, and also 
 of those relating to the construction and improvement 
 of the canals, except so far as the execution of the laws 
 relating to such construction or improvement shall be 
 confided to the state engineer and surveyor; subject to 
 the control of the legislature, he shall make the rules 
 and regulations for the navigation or use of the canals. 
 He may be suspended or removed from office by the 
 governor whenever, in his judgment, the public interest 
 shall so require; but, in case of the removal of such 
 superintendent of public works from office, the governor 
 shall file with the secretary of state a statement of the 
 cause of such removal, and shall report such removal, 
 and the cause thereof, to the legislature at its next session. 
 The superintendent of public works shall appoint not 
 more than three assistant superintendents, whose duties 
 shall be prescribed by him, subject to modification by 
 
Amendments from 1846 to 1894. 313 
 
 the legislature, and who shall receive for their services 
 a compensation to be fixed by law. They shall hold their 
 office for three years, subject to suspension or removal 
 by the superintendent of public works, whenever, in his 
 judgment, the public interest shall so require. Any 
 vacancy in the office of any such assistant superintendent 
 shall be filled, for the remainder of the term for which 
 he was appointed, by the superintendent of public works ; 
 but in case of the suspension or removal of any such 
 assistant superintendent by him, he shall at once report 
 to the governor, in writing, the cause of such removal. 
 All other persons employed in the care and management 
 of the canals, except collectors of tolls, and those in 
 the department of the state engineer and surveyor, shall 
 be appointed by the superintendent of public works, and 
 be subject to suspension or removal by him. The office 
 of canal commissioner is abolished from and after the 
 appointment and qualification of the superintendent of 
 public works, until which time the canal commissioners 
 shall continue to discharge their duties as now provided 
 by law. The superintendent of public works shall per- 
 form all the duties of the canal commissioners, and board 
 of canal commissioners, as now declared by law, until 
 otherwise provided by the legislature. The governor, 
 by and with the advice and consent of the senate, shall 
 have power to fill vacancies in the office of superin- 
 tendent of public works ; if the senate be not in session, 
 he may grant commissions which shall expire at the end 
 of the next succeeding session of the senate. 
 
 [New. Const. 1894, art 5, § 3.] 
 
 § 4. 1876. [Superintendent of state prisons.] — A 
 
 superintendent of state prisons shall be appointed by the 
 governor, by and with the advice and consent of the 
 senate, and hold his office for five years, unless sooner 
 
314 Constitutional History of New York, 
 
 removed; he shall give security in such amount, and 
 with such sureties, as shall be required by law, for the 
 faithful discharge of his duties ; he shall have the super- 
 intendence, management, and control of state prisons, 
 subject to such laws as now exist, or may hereafter be 
 enacted ; he shall appoint the agents, wardens, physicians, 
 and chaplains of the prisons. The agent and warden 
 of each prison shall appoint all other officers of such 
 prison, except the clerk, subject to the approval of the 
 same by the superintendent. The comptroller shall ap- 
 point the clerks of the prisons. The superintendent shall 
 have all the powers and perform all the duties not incon- 
 sistent herewith, which have heretofore been had and 
 performed by the inspectors of state prisons; and from 
 and after the time when such superintendent of state 
 prisons shall have been appointed and qualified the office 
 of inspector of state prisons shall be and hereby is 
 abolished. The governor may remove the superintendent 
 for cause at any time, giving to him a copy of the charges 
 against him, and an opportunity to be heard in his de- 
 fense. 
 
 [New. Const. 1846, art. 5, § 4; 1894, art. 5, § 4.] 
 
 ARTICLE VI. 
 [Judiciary.] 
 
 § 6. 1879. [Supreme court.] — There shall be the 
 existing supreme court, with general jurisdiction in law 
 and equity, subject to such appellate jurisdiction of the 
 court of appeals as now is or may be prescribed by law ; 
 and it shall be composed of the justices now in office, 
 with one additional justice, to be elected as hereinafter 
 provided, who shall be continued during their respective 
 terms, and of their successors. The existing judicial 
 
Amendments from 1846 to 18^4. 315 
 
 districts of the state are continued until changed pur- 
 suant to this section. Five of the justices shall reside 
 in the district in which is the city of New York, and 
 five in the second judicial district, and four in each of 
 the other districts. The legislature may alter the dis- 
 tricts, without increasing the number, once after every 
 enumeration, under this Constitution, of the inhabitants 
 of the state. 
 
 [Judiciary Article of 1869, § 6; Am. 1888; 1894, art. 6, § i.] 
 
 § 6. 1888. [Supreme court; adding the following 
 paragraph providing for a second division of the court 
 of appeals.] — Whenever, and as often as there shall 
 be such an accumulation of causes on the calendar of 
 the court of appeals that the public interests require a 
 more speedy disposition thereof, the said court may 
 certify such fact to the governor, who shall thereupon 
 designate seven justices of the supreme court to act 
 as associate judges, for the time being, of the court of 
 appeals, and to form a second division of said court, and 
 who shall act as such until all the causes upon the said 
 calendar at the time of the making of such certificate 
 are determined, or the judges of said court, elected as 
 such, shall certify to the governor that said causes are 
 substantially disposed of, and on receiving such certifi- 
 cate, the governor may declare said second division dis- 
 solved, and the designation of justices to serve thereon 
 shall theretipon expire. The second division of said 
 court hereby authorized to be constituted shall be com- 
 petent to determine any causes on said calendar which 
 may be assigned to such division by the court composed 
 of judges elected to serve in the court of appeals, and 
 that court may, at any time before judgment, direct 
 any of the causes so assigned to be restored to its calendar 
 
3i6 Constitutional History of New York. 
 
 for hearing and decision. The rules of practice in both 
 divisions shall be the same. Five members of the court 
 shall be sufficient to form a quorum for said second 
 division, and the concurrence of four shall be necessary 
 to a decision. The judges composing said second division 
 shall appoint from their number a chief judge of such 
 division, and the governor may, from time to time, when, 
 in his judgment, the public interest may require, change 
 the designation of any justice of the supreme court to 
 serve in such division, and may fill any vacancy occurring 
 therein, by designating any justice of the supreme court 
 to fill such vacancy. Said second division may appoint 
 and remove a crier and such attendants as may be neces- 
 sary. The judges composing said second division shall 
 not, during the time of their service therein, exercise 
 any of the functions of justices of the supreme court, 
 nor receive any salary or compensation as such justices, 
 but in lieu thereof shall, during such term of service, 
 receive the same compensation as the associate judges 
 of the court of appeals. They shall have power to ap- 
 point the times and places of their sessions, within this 
 state, and the clerk and reporter of the court of appeals 
 shall be clerk and reporter of said second division. 
 
 [Abrogated by the Constitution of 1894. See amendment of 1899 
 (§7, 1894) authorizing the appointment of supreme court justices to 
 sit in the court of appeals in certain specified emergencies.] 
 
 § 12. 1880. [Local courts.] — The superior court of 
 the city of New York, the court of common pleas for 
 the city and county of New York, the superior court of 
 Buffalo, and the city court of Brooklyn, are continued 
 with the powers and jurisdiction they now severally have, 
 and such further civil and criminal jurisdiction as may 
 be conferred by law. The superior court of New York 
 shall be composed of the six judges in office at the adop- 
 
Amendments from 1846 to 1894. 2)^7 
 
 tion of this article, and their successors. The court of 
 common pleas of New York, of the three judges then 
 in ofifice, and their successors, and three additional judges. 
 The superior court of Buffalo, of the judges now in 
 office, and their successors ; and the city court of Brook- 
 lyn, of such number of judges, not exceeding three, as 
 may be provided by law. The judges of said courts, 
 in office at the adoption of this article, are continued 
 until the expiration of their terms. A chief judge shall 
 be appointed by the judges of each of said courts, from 
 their own number, who shall act as such during his 
 official term. Vacancies in the office of the judges named 
 in this section, occurring otherwise than by expiration 
 of term, shall be filled in the same manner as vacancies 
 in the supreme court. The legislature may provide for 
 detailing judges of the superior court and court of com- 
 mon pleas of New York to hold circuits and special terms 
 of the supreme court in that city; for detailing judges 
 of the city court of Brooklyn, to hold circuits and special 
 terms of the supreme court in Kings county, as the public 
 interest may require. 
 
 [Const. 1869, art. 6, § 12; 1894, art. 6, § 5.] 
 
 § 13. 1880. [Adding the following provision for 
 judicial pension.] — The compensation of every judge 
 of the court of appeals, and of every justice of the 
 supreme court, whose term of office shall be abridged 
 pursuant to this provision, and who shall have served 
 as such judge or justice ten years or more, shall be con- 
 tinued during the remainder of the term for which he 
 was elected. 
 
 [The Constitution of 1894, art. 6, § 12, abrogated judicial pensions 
 as to judges elected after January i, 1894.] 
 
3i8 Constitutional History of New York. 
 
 § 28. 1872. [Commission of appeals.] — The court 
 of appeals may order any of the causes, not exceeding 
 five hundred in number, pending in that court at the 
 time of the adoption of this provision, to be heard and 
 determined by the commissioners of appeals, and the 
 legislature may extend the term of service of the com- 
 missioners of appeals, not exceeding two years. 
 
 [New. Judiciary Article of 1869, § 4.] 
 
 § 28. 1882. [General terms; additional justices.] — 
 
 The legislature, at the first session thereof after the 
 adoption of this amendment, shall provide for organiz- 
 ing the supreme court not more than five general terms 
 thereof ; and for the election at the general election next 
 after the adoption of this amendment, by the electors 
 of the judicial districts mentioned in this section respec- 
 tively, of not more than tviro justices of the supreme 
 court in addition to the justices of that court now in 
 office in the first, fifth, seventh, and eighth, and not more 
 than one justice of that court in the second, third, fourth, 
 and sixth judicial districts. The justices so elected shall 
 be invested with their offices on the first Monday of 
 June next after their election. 
 
 [Judiciary Article of 1869, § 7; Const. 1894, art. 6, § 2, reor- 
 ganizing the general term, and changing its name to appellate divi- 
 sion. This section was erroneously numbered 28. That number 
 had already been assigned to the amendment of 1872, relating to the 
 commission of appeals.] 
 
 § 32. 1894. [Kings county court.] — A new section 
 providing for two county judges in Kings county was 
 submitted to the people at the general election in 1894 
 and adopted; but the new Constitution adopted at the 
 same time provided by article 6, § 14, for an additional 
 county judge in Kings county, and, by operation of article 
 
Amendments from 1846 to 1894. Z^9 
 
 14, § 3, the constitutional provision superseded the legis- 
 tive amendment submitted at the same time; consequently 
 this section did not go into effect. 
 
 ARTICLE VII. 
 [Canals.] 
 
 § 3. 1854. [Canal revenues.] — [The following sub- 
 stitute for the original § 3, article 7, was adopted Feb- 
 ruary 15, 1854. It was abrogated by the adoption of 
 another § 3, November 7, 1882. J 
 
 After paying the said expenses of collection, superin- 
 tendence, and repairs of the canals, and the sums appro- 
 priated by the first and second sections of this article, there 
 shall be appropriated and set apart, in each fiscal year, out 
 of the surplus revenues of the canals, as a sinking fund, a 
 sum sufficient to pay the interest, as it falls due, and 
 extinguish the principal within eighteen years, of any 
 loan made under this section; and if the said sinking 
 fund shall not be sufficient to redeem any part of the 
 principal at the stipulated times of payment, or to pay 
 any part of the interest of such loans, as stipulated, 
 the means to satisfy any such deficiency shall be pro- 
 cured on the credit of the said sinking fund. After 
 complying with the foregoing provisions, there shall 
 be paid annually out of said revenues, into the treasury 
 of the state, two hundred thousand dollars to defray the 
 necessary expenses of government. The remainder 
 shall, in each fiscal year, be applied to meet appropria- 
 tions for the enlargement and completion of the canals 
 mentioned in this section, until the said canals shall be 
 completed. In each fiscal year thereafter the remainder 
 shall be disposed of in such manner as the legislature 
 may direct, but shall at no time be anticipated or pledged 
 for more than one year in advance. The legislature 
 
320 Constitutional History of New York. 
 
 shall annually, -during the next four years, appropriate 
 to the enlargement of the Erie, the Oswego, the Cayuga 
 and Seneca canals, and to the completion of the Black 
 River and Genesee Valley canals, and for the enlargement 
 of the locks of the Champlain canal, whenever, from 
 dilapidation or decay, it shall be necessary to rebuild 
 them, a sum not exceeding two millions two hundred 
 and fifty thousand dollars. The remainder of the reve- 
 nues of the canals, for the current fiscal year in which 
 such appropriation is made, shall be applied to meet such 
 appropriation; and if the same shall be deemed insuffi- 
 cient, the legislature shall, at the same session, provide 
 for the deficiency by loan. The legislature shall also 
 borrow one million and five hundred thousand dollars, 
 to refund to the holders of the canal revenue certificates, 
 issued under the provisions of chapter four hundred and 
 eighty-five of the Laws of the year one thousand eight 
 hundred and fifty-one, the amount received into the 
 treasury thereon. But no interest, to accrue after July 
 first, one thousand eight hundred and fifty-five, shall be 
 paid on such certificates. The provisions of section 
 twelve of this article, requiring every law for borrowing 
 money to be submitted to the people, shall not apply to 
 the loans authorized by this section. No part of the 
 revenues of the canals, or of the funds borrowed under 
 this section, shall be paid or applied upon or in conse- 
 quence of any alleged contract made under chapter four 
 hundred and eighty-five of the Laws of the year one 
 thousand eight hundred and fifty-one, except to pay for 
 work done or materials furnished prior to the first day 
 of June, one thousand eight hundred and fifty-two. The 
 rates of toll on persons and property transported on 
 the canals shall not be reduced below those for the year 
 one thousand eight hundred and fifty-two, except by the 
 canal board, with the concurrence of the legislature. All 
 
Amendments from 1846 to i8p4. 321 
 
 contracts for work or materials on any canal shall be 
 made with the person who shall offer to do or provide 
 the same at the lowest price, with adequate security for 
 their performance. 
 
 [Const. 1846, art. 7, § 3; Am. 1882.] 
 
 § 3. 1882. [Tolls abolished.]— The first and second 
 sections of this article having been fully complied with, 
 no tolls shall hereafter be imposed on persons or prop- 
 erty transported on the canals, but all boats navigating 
 the canals, and the owners and masters thereof, shall 
 be subject to such laws and regulations as have been or 
 may hereafter be enacted concerning the navigation of 
 the canals. The legislature shall annually, by equitable 
 taxes, make provision for the expenses of the superin- 
 tendence and repairs of the canals. The canal debt con- 
 tracted under the section hereby amended, which, on the 
 first day of October, eighteen hundred and eighty, 
 amounted to eight million nine hundred and eighty-two 
 thousand, two hundred dollars, shall continue to be 
 known as the "canal debt, under article seven, section 
 three of the Constitution ;" and the sinking fund applica- 
 ble to the payment thereof, together with the contribu- 
 tions to be made thereto, shall continue to be known as 
 the "canal debt sinking fund," and the principal and in- 
 terest of said debt shall be met as provided in the fifth 
 section of this article. All contracts for work or ma- 
 terials on any canals shall be made with the person who 
 shall offer to do or provide the same at the lowest price, 
 with adequate security for their performance. 
 
 No extra compensation shall be made to any con- 
 tractor; but if, from any unforeseen cause, the terms of 
 any contract shall prove to be unjust and oppressive. 
 
 Vol. I. Const. Hist.— 21. 
 
322 Constitutional History of New York. 
 
 the canal board may, upon the appHcation of the con- 
 tractor, cancel such contract. 
 
 [Const. 1894, art. 7, § 9.] 
 
 § 5. 1882. [Appropriations for deficiency in canal 
 revenues.] — There shall annually be imposed and 
 levied a tax which shall be sufficient to pay the interest 
 and extinguish the principal of the canal debt mentioned 
 in the third section of this article, as the same shall 
 become due and payable, and the proceeds of such tax 
 shall, in each fiscal year, be appropriated and set apart 
 for the sinking fund constituted for the payment of the 
 principal and interest of the aforesaid debt. But the 
 legislature may, in its discretion, impose for the fiscal 
 year, beginning on the first day of October, eigiiteen hun- 
 dred and eighty-three, a state tax on each dollar of the 
 valuation of the property in this state which may by 
 law then be subject to taxation, sufficient, with the ac- 
 cumulations of the sinking fund applicable thereto, to 
 pay in full both the principal and interest of the canal 
 debt before mentioned, and the proceeds of such tax shall 
 be appropriated and set apart for 'the sinking fund con- 
 stituted for the payment of the principal and the in- 
 terest of said debt. In the event of such action by the 
 legislature, then the legislature shall, under the law di- 
 recting the assessment and levy of such tax, make such 
 provision for the retirement of the canal debt as it shall 
 deem equitable and just to the creditors of the state. 
 
 [Const. 1846, art. 7, § 5; abrogated in 1894.] 
 
 § 6. 1882. [Certain canals not to be disposed of.] — 
 
 The legislature shall not sell, lease, or otherwise dispose 
 of the Erie canal, the Oswego canal, the Cham- 
 plain canal, the Cayuga and Seneca canal, or the Black 
 
Amendments from 1846 to 1894. 323 
 
 River canal, but they shall remain the property of the 
 state and under its management forever. All funds that 
 may be derived from any lease, sale, or other disposi- 
 tion of any canal shall be applied in payment of the 
 canal debt mentioned in the third section of this article. 
 
 [Const. 1846, art. 7, I 6; Am. 1874; 1894, art. 7, § 8.] 
 
 ARTICLE VIII. 
 [ Corporation s. ] 
 
 § II. 1884. [Municipal corporations, powers regu- 
 lated.] — No county, city, town, or village shall here- 
 after give any money or property, or loan its money or 
 credit, to or in aid of any individual, association, or 
 corporation, or become, directly or indirectly, the owner 
 of stock in or bonds of any association or corporation, 
 nor shall any such county, city, town, or village be al- 
 lowed to incur any indebtedness, except for county, 
 city, town, or village purposes. This section shall not 
 prevent such county, city, town, or village from making 
 such provision for the aid or support of its poor as may 
 be authorized by law. 
 
 No county containing a city of over one hundred thou- 
 sand inhabitants, or any such city, shall be allowed to 
 become indebted for any purpose or in any manner to 
 an amount which, including existing indebtedness, shall 
 exceed ten per centum of the assessed valuation of the 
 real estate of such county or city subject to taxation, as 
 it appeared by the assessment-rolls of said county or city 
 on the last assessment for state or county taxes prior to 
 the incurring of such indebtedness; and all indebted- 
 ness in excess of such limitation, except such as may now 
 exist, shall be absolutely void, except as herein other- 
 wise provided. No such county or such city whose pres- 
 ent indebtedness exceeds ten per centum of the assessed 
 
324 Constitutional History of New York. 
 
 valuation of its real estate subject to taxation shall be 
 allowed to become indebted in any further amount until 
 such indebtedness shall be reduced within such limit. 
 This section shall not be construed to prevent the issu- 
 ing of certificates of indebtedness or revenue bonds 
 issued in anticipation of the collection of taxes for 
 amounts actually contained, or to be contained, in the 
 taxes for the year when such certificates or revenue bonds 
 are issued and payable out of such taxes. Nor shall this 
 section be construed to prevent the issue of bonds to pro- 
 vide for the supply of water, but the term of the bonds 
 issued to provide for the supply of water shall not 
 exceed twenty years, and a sinking fund shall be created 
 on the issuing of said bonds for their redemption, by 
 raising annually a sum which will produce an amount 
 equal to th€ sum of the principal and interest of said bonds 
 at their maturity. The amount hereafter to be raised by 
 tax for county or city purposes, in any county contain- 
 ing a city of over one hundred thousand inhabitants or 
 any such city of this state, in addition to providing for 
 the principal and interest of existing debt, shall not, in 
 the aggregate, exceed in any one year two per centum 
 of the assessed valuation of the real and personal estate 
 of such county or city, to be ascertained as prescribed in 
 this section in respect to county or city debt. 
 
 [Am. 1874; Const. 1894, art. 8, § 10.] 
 
The Fourth Constitution, i8p4. 325 
 
 THE FOURTH CONSTITUTION, 1894. 
 
 [The Constitution was revised by a convention which met on the 
 8th day of May, 1894, and adjourned on the 29th of September, 1894, 
 The following Constitution, proposed by this convention, was ap- 
 proved by the people at the general election on the 6th day of No- 
 vember, 1894. This Constitution will be found in the fourth volume, 
 with notes of judicial decisions, and other notes of an explanatory 
 or historical character. It it inserted here without notes, except ref- 
 erences to other Constitutions, for the purpose of affording the read- 
 er a convenient opportunity to examine it in its original form and in 
 its relations to previous constitutional development. The notes to 
 the sections refer to corresponding provisions in other Constitu- 
 tions or constitutional amendments. These provisions are not al- 
 ways identical, but relate to the same general subject Matter in 
 brackets is not in the original.] 
 
 PREAMBLE. 
 
 We, the people of the state of New York, grateful 
 to Almighty God for our freedom, in order to secure its 
 blessings, do establish this constitution. 
 
 ARTICLE I. 
 [Bill of Rights.] 
 
 Section i. [Rights of citizens.] — No member of 
 this state shall be disfranchised, or deprived of any of 
 the rights or privileges secured to any citizen thereof, 
 unless by the law of the land, or the judgment of his 
 peers. 
 
 [Magna Charta, chap. 39; New York Charter of Liberties, 1683, 
 par. 13 ; Const. 1777, art. 13 ; 1821, art 7, § i ; 1846, art i, § i.] 
 
 § 2. [Trial by jury.] — The trial by jury in all cases 
 in which it has been heretofore used shall remain in- 
 violate forever; but a jury trial may be waived by the 
 
326 Constitutional History of New York. 
 
 parties in all civil cases in the manner to be prescribed 
 by law. 
 
 [Const. 1777, art. 41; 1821, art. 7, § 2; 1846, art. i, § 2.] 
 
 § 3. [Religious toleration.] — The free exercise and 
 enjoyment of religious profession and worship, with- 
 out discrimination or preference, shall forever be allowed 
 in this state to all mankind; and no person shall be 
 rendered incompetent to be a witness on account of his 
 opinions on matters of religious belief; but the liberty 
 of conscience hereby secured shall not be so construed 
 as to excuse acts of licentiousness, or justify practices 
 inconsistent with the peace or safety of this state. 
 
 [Const. 1777, art. 38; 1821, art. 7, § 3; 1846, art. i, § 3.] 
 
 § 4. [When writ of habeas corpus not to be sus- 
 pended.] — The privilege of the writ of habeas corpus 
 shall not be suspended, unless when, in cases of rebellion 
 or invasion, the public safety may require its suspension. 
 
 [Const. 1821, art. 7, § 6; 1846, art. i, § 4.] 
 
 § 5. [Excessive bail, fines, and punishments prohib- 
 ited; rights of witness.] — Excessive bail shall not be 
 required, nor excessive fines imposed, nor shall cruel and 
 unusual punishments be inflicted, nor shall witnesses be 
 unreasonably detained. 
 
 [Const. 1846, art. i, § 5.] 
 
 § 6. [Rights of accused in criminal cases; taking 
 private property for public use.] — No person shall be 
 held to answer for a capital or otherwise infamous crime 
 (except in cases of impeachment, and in cases of militia 
 when in actual service, and the land and naval forces in 
 
The Fourth Constitution, 18^4. 327 
 
 time of war, or which this state may keep with the con- 
 sent of Congress in time of peace, and in cases of petit 
 larceny, under the regulation of the legislature), unless 
 on presentment or indictment of a grand jury; and in 
 any trial in any court whatever the party accused shall 
 be allowed to appear and defend in person and with coun- 
 sel, as in civil actions. No person shall be subject to be 
 twice put in jeopardy for the same offense; nor shall he 
 be compelled in any criminal case to be a witness against 
 himself ; nor be deprived of life, liberty, or property with- 
 out due process of law; nor shall private property be 
 taken for public use, without just compensation. 
 
 [Const. 1821, art. 7,% 7; 1846, art. I, § 6.] 
 
 § 7. [Compensation for private property, how as- 
 certained; private roads; drainage.] — When private 
 property shall be taken for any public use, the com- 
 pensation to be made therefor, when such compensation 
 is not made by the state, shall be ascertained by a jury, 
 or by not less than three commissioners appointed by a 
 court of record, as shall be prescribed by law. Private 
 roads may be opened in the manner to be prescribed by 
 law; but in every case the necessity of the road and the 
 amount of all damage to be sustained by the opening 
 thereof shall be first determined by a jury of freeholders, 
 and such amount, together with the expenses of the pro- 
 ceeding, shall be paid by the person to be benefited. 
 General laws may be passed permitting the owners or 
 occupants of agricultural lands to construct and maintain 
 for the drainage thereof, necessary drains, ditches, and 
 dykes upon the lands of others, under proper restrictions 
 and with just compensation, but no special laws shall be 
 enacted for such purposes. 
 
 [Const 1846, art. i, § 7-] 
 
328 Constitutional History of New York. 
 
 § 8. [Freedom of speech and press; evidence in 
 libel cases.] — Every citizen may freely speak, write, 
 and publish his sentiments on all subjects, being responsi- 
 ble for the abuse of that right; and no law shall be 
 passed to restrain or abridge the liberty of speech or of 
 the press. In all criminal prosecutions or indictments 
 for libels, the truth may be given in evidence to the 
 jury; and if it shall appear to the jury that the matter 
 charged as libelous is true, and was published with good 
 motives and for justifiable ends, the party shall be ac- 
 quitted; and the jury shall have the right to determine 
 the law and the fact. 
 
 [Const. 1821, art. 7, § 8; 1846, art. i, § 8.] 
 
 § 9. [Right to assemble and petition; divorces; lot- 
 teries prohibited.] — No law shall be passed abridging 
 the right of the people peaceably to assemble and to 
 petition the government, or any department thereof; nor 
 shall any divorce be granted otherwise than by due 
 judicial proceedings; nor shall any lottery or the sale of 
 lottery tickets, poolselling, bookmaking, or any other 
 kind of gambling hereafter be authorized or allowed 
 within this state; and the legislature shall pass appro- 
 priate laws to prevent offenses against any of the pro- 
 visions of this section. 
 
 [Const. 1846, art. i, § 10.] 
 
 § 10. [Sovereignty in real property; escheats.] — 
 
 The people of this state, in their right of sovereignty, 
 are deemed to possess the original and ultimate prop- 
 erty in and to all lands within the jurisdiction of the 
 state; and all lands the title to which shall fail, from a 
 defect of heirs, shall revert or escheat to the people. 
 
 [Const. 1846, art. i, § 11.] 
 
The Fourth Constitution, 1894.. 329 
 
 § II. [Feudal tenures abolished.] — All feudal ten- 
 ures of every description, with all their incidents, are 
 declared to be abolished, saving, however, all rents and 
 services certain which at any time heretofore have been 
 lawfully created or reserved. 
 
 [Const. 1846, art. i, § 12.] 
 
 § 12, [Absolute ownership of estates.] — All lands 
 within this state are declared to be allodial, so that, sub- 
 ject only to the liability to escheat, the entire and abso- 
 lute property is vested in the owners, according to the 
 nature of their respective estates. 
 
 [Const. 1846, art. i, § 13.] 
 
 § 13. [Leases of agricultural lands limited.] — No 
 lease or grant of agricultural land, for a longer period 
 than twelve years, hereafter made, in which shall be 
 reserved any rent or service of any kind, shall be valid. 
 
 [Const. 1846, art. i, § 14.] 
 
 § 14. [Restraints on alienation prohibited.] — All 
 
 fines, quarter-sales, or other, like restraints upon aliena- 
 tion, reserved in any grant of land hereafter to be made, 
 shall be void. 
 
 [Const. 1846, art. i, § 15.] 
 
 § 15. [Indian lands.] — No purchase or contract for 
 the sale of lands in this state, made since the fourteenth 
 day of October, one thousand seven hundred and seventy- 
 five; or which may hereafter be made, of, or with the 
 Indians, shall be valid, unless made under the authority, 
 and with the consent of, the legislature. 
 
 [Const. 1777, art. 37; 1821, art. 7, § 12; 1846, art. I, § 16.] 
 
330 Constitutional History of New York. 
 
 § 1 6. [Common law continued.] — Such parts of the 
 common law, and of the acts of the legislature of the 
 colony of New York, as together did form the law of 
 the said colony, on the nineteenth day of April, one thou- 
 sand seven hundred and seventy-five, and the resolutions 
 of the Congress of the said colony, and of the conven- 
 tion of the state of New York, in force on the twentieth 
 day of April, one thousand seven hundred and seventy- 
 seven, which have not since expired, or been repealed or 
 altered; and such acts of the legislature of this state as 
 are now in force, shall be and continue the law of this 
 state, subject to such alterations as the legislature shall 
 make concerning the same. But all such parts of the 
 common law, and such of the said acts, or parts thereof, 
 as are repugnant to this Constitution, are hereby abro- 
 gated. 
 
 [Const. 1777, art. 35; 1821, art. 7, § 13; 1846, art. i, § 17.] 
 
 § 17. [Royal grants and charters preserved.] — All 
 
 grants of land within this state, made by the King of 
 Great Britain, or persons acting under his authority, after 
 the fourteenth day of October, one thousand seven hun- 
 dred and seventy-five, shall be null and void; but noth- 
 ing contained in this Constitution shall affect any grants 
 of land within this state, made by the authority of the 
 said King or his predecessors, or shall annul any char- 
 ters to bodies politic and corporate, by him or them made, 
 before that day; or shall affect any such grants or char- 
 ters since made by this state, or by persons acting under 
 its authority; or shall impair the obligation of any debts 
 contracted by the state, or individuals, or bodies cor- 
 porate, or any other rights of property, or any suits, 
 actions, rights of action, or other proceedings in courts 
 of justice. 
 
 [Const. 1777, art. 36; 1821, art. 7, § 14; 1846, art. i, § 18.] 
 
The Fourth Constitution, 18^4. 331 
 
 § 18. [Damages for injuries causing death.] — The 
 
 right of action now existing to recover damages for 
 injuries resulting in death shall never be abrogated; 
 and the amount recoverable shall not be subject to any 
 statutory limitation. 
 
 [New.] 
 
 ARTICLE 11. 
 [Suffrage.] 
 
 Section i. [Qualification of voters.] — Every male 
 citizen of the age of twenty-one years, who shall have 
 been a citizen for ninety days, and an inhabitant of this 
 state one year next preceding an election, and for the 
 last four months a resident of the county, and for the 
 last thirty days a resident of the election district in which 
 he may offer his vote, shall be entitled to vote at such 
 election in the election district of which he shall at 
 the time be a resident, and not elsewhere, for all officers 
 that now are or hereafter may be elective by the people, 
 and upon all questions which may be submitted to the 
 vote of the people, provided that in time of war no 
 elector in the actual military service of the state, or of 
 the United States, in the Army or Navy thereof, shall 
 be deprived of his vote by reason of his absence from 
 such election district; and the legislature shall have 
 power to provide the manner in which and the time and 
 place at which such absent electors may vote, and for the 
 return and canvass of their votes in the election districts 
 in which they respectively reside. 
 
 [Const. 1777, art. 7 ; 1821, art. 2, § i ; Am. 1826 ; 1846, art. 2, § i ; 
 Am. 1864; Am. 1874.] 
 
 § 2. [Exclusion from right of suffrage.] — No per- 
 son who shall receive, accept, or offer to receive, or 
 
332 Constitutional History of New York. 
 
 pay, offer, or promise to pay, contribute, offer, or prom- 
 ise to contribute to another, to be paid or used, any 
 money or other valuable thing as a compensation or re- 
 ward for the giving or withholding a vote at an elec- 
 tion, or who shall make any promise to influence the 
 giving or withholding any such vote, or who shall make 
 or become directly or indirectly interested in any bet or 
 wager depending upon the result of any election, shall 
 vote at such election ; and upon challenge for such cause, 
 the person so challenged, before the officers authorized 
 for that purpose shall receive his vote, shall swear or 
 affirm before such officers that he has not received or 
 offered, does not expect to receive, has not paid, offered, 
 or promised to pay, contributed, offered, or promised to 
 contribute to another, to be paid or used, any money or 
 other valuable thing as a compensation or reward for 
 the giving or withholding a vote at such election, and 
 has not made any promise to influence the giving or with- 
 holding of any such vote, nor made or become directly 
 or indirectly interested in any bet or wager depending 
 upon the result of such election. The legislature shall 
 enact laws excluding from the right of suffrage all per- 
 sons convicted of bribery or of any infamous crime. 
 
 [Const. 1821, art. 2, § 2; 1846, art. 2, § 2; Am. 1874.] 
 
 § 3- [Right of suffrage not affected by certain occu- 
 pations and conditions.] — For the purpose of voting, 
 no person shall be deemed to have gained or lost a resi- 
 dence, by reason of his presence or absence, while em- 
 ployed in the service of the United States; nor while 
 engaged in the navigation of the waters of this state, 
 or of the United States, or of the high seas; nor while 
 a student of any seminary of learning; nor while kept 
 at any almshouse, or other asylum, or institution wholly 
 
The Fourth Constitution, 1894. 333 
 
 or partly supported at public expense or by charity; 
 nor while confined in any public prison. 
 
 [Const 1846, art. 2, § 3.] 
 
 § 4. [Registration of voters.] — Laws shall be made 
 for ascertaining, by proper proofs, the citizens who shall 
 be entitled to the right of suffrage hereby established, 
 and for the registration of voters; which registration 
 shall be completed at least ten days before each election. 
 Such registration shall not be required for town and 
 village elections except by express provision of law. 
 In cities and villages having five thousand inhabitants 
 or more, according to the last preceding state enumera- 
 tion of inhabitants, voters shall be registered upon per- 
 sonal application only; but voters not residing in such 
 cities or villages shall not be required to apply in per- 
 son for registration at the first meeting of the officers 
 having charge of the registry of voters. 
 
 [Const. 1821, art. 2, § 3; 1846, art. 2, § 4.] 
 
 § 5. [Manner of voting.] — All elections by the citi- 
 zens, except for such town officers as may by law be di- 
 rected to be otherwise chosen, shall be by ballot, or by 
 such other method as may be prescribed by law, provided 
 that secrecy in voting be preserved. 
 
 [Const. 1777, art. 6; 1821, art. 2, § 4; 1846, art. 2, § 5.] 
 
 § 6. [Bi-partisan election boards.] — ^All laws creat- 
 ing, regulating, or affecting boards or officers charged 
 with the duty of registering voters, or of distributing 
 ballots at the polls to voters, or of receiving, recording, 
 or counting votes at elections, shall secure equal repre- 
 sentation of the two political parties which, at the gen- 
 eral election next preceding that for which such boards 
 
334 Constitutional History of New York. 
 
 or officers are to serve, cast the highest and the next 
 highest number of votes. All such boards and officers 
 shall be appointed or elected in such manner, and upon 
 the nomination of such representatives of said parties 
 respectively, as the legislature may direct. Existing 
 laws on this subject shall continue until the legislature 
 shall otherwise provide. This section shall not apply 
 to town meetings, or to village elections. 
 
 [New.] 
 
 ARTICLE III. 
 [The Legislature.] 
 
 Section i. [Legislative power.] — The legislative 
 power of this state shall be vested in the senate and as- 
 sembly. 
 
 [Const. 1777, art. 2; 1821, art. i, § i; 1846, art. 3, § I.] 
 
 § 2. [Senate and assembly, how constituted.] — 
 
 The senate shall consist of fifty members, except as here- 
 inafter provided. The senators elected in the year one 
 thousand eight hundred and ninety-five shall hold their 
 offices for three years, and their successors shall be chosen 
 for two years. The assembly shall consist of one hun- 
 dred and fifty members, who shall be chosen for one 
 year. 
 
 [Assembly, Const. 1777, art. 4; Am. 1801, § i; 1821, art. i, § 2; 
 1846, art. 3, § 2. Senate, Const. 1777, art. 10; Am. 1801, § 3; 1821, 
 art. I, § 2; 1846, art. 3, § 2.] 
 
 § 3. [Senate districts.] — The state shall be divided 
 into fifty districts, to be called senate districts, each of 
 which shall choose one senator. The districts shall be 
 numbered from one to fifty, inclusive. 
 
The Fourth Constitution, 1894. 335 
 
 District niimber one (i) shall consist of the counties 
 of Suffolk and Richmond. 
 
 District number two (2) shall consist of the county 
 of Queens. 
 
 District number three (3) shall consist of that part of 
 the county of Kings comprising the first, second, third, 
 fourth, fifth, and sixth wards of the city of Brooklyn. 
 
 District number four (4) shall consist of that part of 
 the county of Kings comprising the seventh, thirteenth, 
 nineteenth, and twenty-first wards of the city of Brook- 
 
 District number five (5) shall consist of that part of 
 the county of Kings comprising the eighth, tenth, twelfth, 
 and thirtieth wards of the city of Brookl)Ti, and the 
 ward of the city of Brooklyn which was formerly the 
 town of Gravesend. 
 
 District number six (6) shall consist of that part of 
 the county of Kings comprising the ninth, eleventh, 
 twentieth, and twenty-second wards of the city of Brook- 
 lyn. 
 
 District nimiber seven (7) shall consist of that part 
 of the county of Kings comprising the fourteenth, fif- 
 teenth, sixteenth, and seventeenth wards of the city of 
 Brooklyn. 
 
 District number eight (8) shall consist of that part of 
 the county of Kings comprising the twenty-third, twenty- 
 fourth, twenty-fifth, and twenty-ninth wards of the city 
 of Brooklyn, and the town of Flatlands. 
 
 District number nine (9) shall consist of that part of 
 the county of Kings comprising the eighteenth, twenty- 
 sixth, twenty-seventh, and twenty-eighth wards of the 
 city of Brooklyn. 
 
 District number ten (10) shall consist of that part of 
 the county of New York within and bounded by a line 
 beginning at Canal street and the Hudson river, and 
 
336 Constitutional History of New York. 
 
 running thence along Canal street, Hudson street, Dom- 
 inick street, Varick street, Broome street, Sullivan street. 
 Spring street, Broadway, Canal street, the Bowery, Di- 
 vision street. Grand street, and Jackson street, to the 
 East river, and thence around the southern end of Man- 
 hattan island, to the place of beginning, and also Gover- 
 nor's, Bedloe's, and Ellis islands. 
 
 District number eleven (11) shall consist of that part 
 of the county of New York lying north of district num- 
 ber ten, and within and bounded by a line beginning at 
 the junction of Broadway and Canal street, and running 
 thence along Broadway, Fourth street, the Bowery, and 
 Third avenue, St. Mark's place. Avenue A, Seventh 
 street. Avenue B, Clinton street, Rivington street, Nor- 
 folk street. Division street, Bowery, and Canal street, to 
 the place of beginning. 
 
 District number twelve (12) shall consist of that part 
 of the county of New York lying north of districts num- 
 bers ten and eleven, and within and bounded by a line 
 beginning at Jackson street and the East river, and run- 
 ning thence through Jackson street. Grand street, Divi- 
 sion street, Norfolk street, Rivington street, Clinton 
 street, Avenue B, Seventh street. Avenue A, St. Mark's 
 place, Third avenue, East Fourteenth street to the East" 
 river, and along the East river, to the place of beginning. 
 
 District number thirteen (13) shall consist of that part 
 of the county of New York lying north of district num- 
 ber ten, and within and bounded by a line beginning at 
 the Hudson river at the foot of Canal street, and run- 
 ning thence along Canal street, Hudson street, Dominick 
 street, Varick street, Broome street, Sullivan street. 
 Spring street, Broadway, Fourth street, the Bowery, and 
 third avenue. Fourteenth street, Sixth avenue. West 
 Fifteenth street, Seventh avenue. West Nineteenth street. 
 
The Fourth Constitution, 1894. 337 
 
 Eighth avenue, West Twentieth street, and the Hudson 
 river, to the place of beginning. 
 
 District number fourteen (14) shall consist of that 
 part of the county of New York lying north of districts 
 numbers twelve and thirteen, and within and bounded by 
 a line beginning at East Fourteenth street and the East 
 river, and running thence along East Fourteenth street, 
 Irving place, East Nineteenth street, Third avenue, East 
 Twenty-third street, Lexington avenue. East Fifty-third 
 street, Third avenue. East Fifty-second street, and the 
 East river, to the place of beginning. 
 
 District number fifteen (15) shall consist of that part 
 of the county of New York lying north of district num- 
 ber thirteen, and within and bounded by a line beginning 
 at the junction of West Fourteenth street and Sixth 
 avenue, and running thence along Sixth avenue. West 
 Fifteenth street, Seventh avenue, West Fortieth street, 
 Eighth avenue, and the transverse road across Central 
 park at Ninety-seventh street. Fifth avenue. East Ninety- 
 sixth street, Lexington avenue. East Twenty-third street. 
 Third avenue, East Nineteenth street, Trying place, and 
 Fourteenth street, to the place of beginning. 
 
 District number sixteen (16) shall consist of that part 
 of the county of New York lying north of district num- 
 ber thirteen, and within and bounded by a line beginning 
 at Seventh avenue and West Nineteenth street, and run- 
 ning thence along West Nineteenth street. Eighth avenue. 
 West Twentieth street, the Hudson river. West Forty- 
 sixth street. Tenth avenue. West Forty-third street, 
 Eighth avenue, West Fortieth street, and Seventh avenue, 
 to the place of beginning. 
 
 District number seventeen (17) shall consist of that 
 part of the county of New York lying north of district 
 number sixteen, and within and bounded by a line be- 
 VoL. I. Const. Hist. — 22. 
 
338 Constitutional History of New York. 
 
 ginning at the junction of Eighth avenue and West 
 Forty-third street, and running thence along West Forty- 
 third street, Tenth avenue. West Forty-sixth street, the 
 Hudson river. West Eighty-ninth street. Tenth or Am- 
 sterdam avenue, West Eighty-sixth street. Ninth or Co- 
 lumbus avenue. West Eighty-first street, and Eighth 
 avenue, to the place of beginning. 
 
 District number eighteen (i8) shall consist of that 
 part of the county of New York lying north of district 
 number fourteen, and within and bounded by a line be- 
 ginning at the junction of East Fifty-second street and 
 the East river, and running thence along East Fifty- 
 second street, Third avenue. East Fifty-third street, Lex- 
 ington avenue. East Eighty-fourth street. Second avenue. 
 East Eighty-third street, and the East river, to the place 
 of beginning; and also Blackwell's island. 
 
 District number nineteen (19) shall consist of that 
 part of the county of New York lying north of district 
 number seventeen, and within and bounded by a line 
 beginning at West Eighty-ninth street and the Hudson 
 river, and running thence along the Hudson river and 
 Spuyten Duyvil creek around the northern end of Man- 
 hattan island; thence southerly along the Harlem river 
 to the north end of Fifth avenue; thence along Fifth 
 avenue. East One Hundred and Twenty-ninth street. 
 Fourth or Park avenue, East One Hundred and Tenth 
 street, Fifth avenue, the transverse road across Central 
 park at Ninety-seventh street. Eighth avenue. West 
 Eighty-first street. Ninth or Columbus avenue. West 
 Eighty-sixth street. Tenth or Amsterdam avenue and 
 West Eighty-ninth street, to the place of beginning. 
 
 District number twenty (20) shall consist of that part 
 of the county of New York lying north of districts 
 numbers eighteen and fifteen, and within and bounded 
 by a line beginning at East Eighty-third street and the 
 
The Fourth Constitution, i8p4. 339 
 
 East river, running thence through East Eighty-third 
 street, Second avenue, East Eighty-fourth street, Lex- 
 ington avenue. East Ninety-sixth street. Fifth avenue, 
 East One Hundred and Tenth street, Fourth or Park 
 avenue, East One Hundred and Nineteenth street to the 
 Harlem river, and along the Harlem and East rivers, 
 to the place of beginning; and also Randall's island and 
 Ward's island. 
 
 All the above districts in the county of New York 
 bounded upon or along the boundary waters of the 
 county, shall be deemed to extend to the county line. 
 
 District number twenty-one (21) shall consist of that 
 part of the county of New York lying north of districts 
 numbers nineteen and twenty, within and bounded by a 
 line beginning at East One Hundred and Nineteenth 
 street and the Harlem river, and running thence along 
 East One Hundred and Nineteenth street, Fourth or Park 
 avenue, One Hundred and Twenty-ninth street, Fifth 
 avenue and the Harlem river to the place of beginning; 
 and all that part of the county of New York not here- 
 inbefore described. 
 
 District number twenty-two (22) shall consist of the 
 county of Westchester. 
 
 District number twenty-three (23) shall consist of the 
 counties of Orange and Rockland. 
 
 District number twenty-four (24) shall consist of the 
 counties of Dutchess, Columbia, and Putnam. 
 
 District number twenty-five (25) shall consist of the 
 counties of Ulster and Greene. 
 
 District number twenty-six (26) shall consist of the 
 counties of Delaware, Chenango, and Sullivan. 
 
 District number twenty-seven (27) shall consist of the 
 counties of Montgomery, Fulton, Hamilton, and Scho- 
 harie. 
 
340 Constitutional History of New York. 
 
 District number twenty-eight (28) shall consist of the 
 counties of Saratoga, Schenectady, and Washington. 
 
 District number twenty-nine (29) shall consist of the 
 county of Albany. 
 
 District number thirty (30) shall consist of the county 
 of Rensselaer. 
 
 District number thirty-one (31) shall consist of the 
 counties of Clinton, Essex, and Warren. 
 
 District number thirty-two (32) shall consist of the 
 counties of St. Lawrence and Franklin. 
 
 District number thirty-three (33) shall consist of the 
 counties of Otsego and Herkimer. 
 
 District number thirty-four (34) shall consist of the 
 county of Oneida. 
 
 I District number thirty-five (35) shall consist of the 
 counties of Jefferson and Lewis. 
 
 District number thirty-six (36) shall consist of the 
 county of Onondaga. 
 
 District number thirty-seven (37) shall consist of the 
 counties of Oswego and Madison. 
 
 District number thirty-eight (38) shall consist of the 
 counties of Broome, Cortland, and Tioga. 
 
 District number thirty-nine (39) shall consist of the 
 counties of Cayuga and Seneca. 
 
 District number forty (40) shall consist of the coun- 
 ties of Chemung, Tompkins, and Schuyler. 
 
 District number forty-one (41) shall consist of the 
 counties of Steuben and Yates. 
 
 District number forty-two (42) shall consist of the 
 counties of Ontario and Wayne. 
 
 District number forty-three (43) shall consist of that 
 part of the county of Monroe comprising the towns of 
 Brighton, Henrietta, Irondequoit, Mendon, Penfield, 
 Perinton, Pittsford, Rush, and Webster, and the fourth, 
 sixth, seventh, eighth, twelfth, thirteenth, fourteenth, six- 
 
The Fourth Constitution, 18^4. 341 
 
 teenth, seventeenth, and eighteenth wards of the cit)^ of 
 Rochester, as at present constituted.- 
 
 District number forty-four (44) shall consist of that 
 part of the county of Monroe comprising the towns of 
 ChiH, Clarkson, Gates, Greece, HamHn, Ogden, Parma, 
 Riga, Sweden, and Wheatland, and the first, second, 
 third, fifth, ninth, tenth, eleventh, fifteenth, nineteenth, 
 and twentieth wards of the city of Rochester, as at pres- 
 ent constituted. 
 
 District number forty-five (45) shall consist of the 
 counties of Niagara, Genesee, and Orleans. 
 
 District number forty-six (46) shall consist of the 
 counties of Allegany, Livingston, and Wyoming. 
 
 District number forty-seven (47) shall consist of that 
 part of the county of Erie comprising the first, second, 
 third, sixth, fifteenth, nineteenth, twentieth, twenty-first, 
 twenty-second, twenty-third, and twenty-fourth wards of 
 the city of Buffalo, as at present constituted. 
 
 District number forty-eight (48) shall consist of that 
 part of the county of Erie comprising the fourth, fifth, 
 seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, 
 fourteenth, and sixteenth wards of the city of Buffalo, 
 as at present constituted. 
 
 District number forty-nine (49) shall consist of that 
 part of the county of Erie comprising the seventeenth, 
 eighteenth, and twenty-fifth wards of the city of Buffalo, 
 as at present constituted ; and all the remainder of the said 
 county of Erie not hereinbefore described. 
 
 District number fifty (50) shall consist of the counties 
 of Chautauqua and Cattaraugus. 
 
 [Const. 1777, art 12; 1821, art. I, § S; 1846, art. 3, § 3.] 
 
 § 4. [Census; senate reapportionment.] — An enu- 
 meration of the inhabitants of the state shall be taken 
 under the direction of the secretary of state, during the 
 
342 Constitutional History of New York. 
 
 months of May and June, in the year one thousand nine 
 hundred and five, and in the same months every tenth 
 year thereafter; and the said districts shall be so altered 
 by the legislature at the first regular session after the 
 return of every enumeration, that each senate district 
 shall contain, as nearly as may be, an equal number of 
 inhabitants, excluding aliens, and be in as compact form 
 as practicable, and shall remain unaltered until the return 
 of another enumeration, and shall at all times consist 
 of contiguous territory; and no county shall be divided 
 in the formation of a senate district except to make two 
 or more senate districts v^fholly in such county. No town, 
 and no block in a city inclosed by streets or public ways, 
 shall be divided in the formation of senate districts ; nor 
 shall any district contain a greater excess in popula- 
 tion over an adjoining district in the same county than 
 the population of a town or block therein adjoining such 
 district. Counties, towns, or blocks which, from their 
 location, may be included in either of two districts, shall 
 be so placed as to make said districts most nearly equal 
 in number of inhabitants, excluding aliens. 
 
 No county shall have four or more senators unless it 
 shall have a full ratio for each senator. No county shall 
 have more than one third of all the senators ; and no two 
 counties or the territory thereof as now organized, which 
 are adjoining counties, or which are separated only by 
 public waters, shall have more than one half of all the 
 senators. 
 
 The ratio for apportioning senators shall always be 
 obtained by dividing the number of inhabitants, exclud- 
 ing aliens, by fifty; and the senate shall always be com- 
 posed of fifty members, except that if any county having 
 three or more senators at the time of any apportionment 
 shall be entitled on such ratio to an additional senator 
 or senators, such additional senator or senators shall be 
 
The Fourth Constitution, 1894. 343 
 
 given to such county in addition to the fifty senators, 
 and the whole number of senators shall be increased to 
 that extent. 
 
 [Const. 1777, art. s; Am. 1801, § 3; 1821, art. I, § 6; 1846, art. 3, 
 §4-] 
 
 § 5. [Assembly apportionment.] — The members of 
 the assembly shall be chosen by single districts, and 
 shall be apportioned by the legislature at the first regular 
 session after the return of every enumeration among 
 the several counties of the state, as nearly as may be 
 according to the number of their respective inhabitants, 
 excluding aliens. Every county heretofore established 
 and separately organized, except the county of Hamil- 
 ton, shall always be entitled to one member of assembly, 
 and no county shall hereafter be erected unless its popu- 
 lation shall entitle it to a member. The county of Ham- 
 ilton shall elect with the county of Fulton, until the popu- 
 lation of the county of Hamilton shall, according to the 
 ratio, entitle it to a member. But the legislature may 
 abolish the said county of Hamilton and annex the terri- 
 tory thereof to some other county or counties. 
 
 The quotient obtained by dividing the whole number 
 of inhabitants of the state, excluding aliens, by the num- 
 ber of members of assembly, shall be the ratio for appor- 
 tionment, which shall be made as follows : One mem- 
 ber of assembly shall be apportioned to every county, 
 including Fulton and Hamilton as one county, containing 
 less than the ratio and one half over. Two members 
 shall be apportioned to every other county. The remain- 
 ing members of assembly shall be apportioned to the 
 counties having more than two ratios, according to the 
 number of inhabitants, excluding aliens. Members ap- 
 portioned on remainders shall be apportioned to the coun- 
 ties having the highest remainders on the order thereof 
 
344 Constitutional History of New York. 
 
 respectively. No county shall have more members of 
 assembly than a county having a greater number of in- 
 habitants, excluding aliens. 
 
 Until after the next enumeration, members of the 
 assembly shall be apportioned to the several counties, 
 as follows: Albany county, four members; Allegany 
 county, one member; Broome county, two members; 
 Cattaraugus county, two members; Cayuga county, two 
 members; Chautauqua county, two members; Chemung 
 county, one member; Chenango county, one member; 
 Clinton county, one member ; Columbia county, one mem- 
 ber; Cortland county, one member; Delaware county, 
 one member; Dutchess county, two members; Erie 
 county, eight members; Essex county, one member; 
 Franklin county, one member; Fulton and Hamilton 
 counties, one member; Genesee county, one member; 
 Greene county, one member ; Herkimer county, one mem- 
 ber; Jefferson county, two members; Kings county, 
 twenty-one members; Lewis county, one member; Liv- 
 ingston county, one member ; Madison county, one mem- 
 ber ; Monroe county, four members ; Montgomery county, 
 one member; New York county, thirty-five members; 
 Niagara county, two members; Oneida county, three 
 members; Onondaga county, four members; Ontario 
 county, one member; Orange county, two members; 
 Orleans county, one member; Oswego county, two mem- 
 bers; Otsego county, one member; Putnam county, one 
 member; Queens county, three members; Rensselaer 
 county, three members ; Richmond county, one member ; 
 Rockland county, one member; St. Lawrence county, 
 two members; Saratoga county, one member; Schenec- 
 tady county, one member; Schoharie county, one mem- 
 ber; Schuyler county, one member; Seneca county, one 
 member ; Steuben county, two members ; Suffolk county, 
 two members; Sullivan county, one member; Tioga 
 
The Fourth Constitution, 18^4. 345 
 
 county, one member; Tompkins county, one member; 
 Ulster county, two members; Warren county, one mem- 
 ber; Washington county, one member; Wayne county, 
 one member; Westchester county, three members; 
 Wyoming county, one member, and Yates county, one 
 member. 
 
 In any county entitled to more than one member, the 
 board of supervisors, and in any city embracing an entire 
 county and having no board of supervisors, the common 
 council, or if there be none, the body exercising the 
 powers of a common council, shall assemble on the sec- 
 ond Tuesday of June, one thousand eight hundred and 
 ninety-five, and at such times as the legislature making 
 an apportionment shall prescribe, and divide such coun- 
 ties into assembly districts as nearly equal in number of 
 inhabitants, excluding aliens, as may be, of convenient 
 and contiguous territory in as compact form as practi- 
 cable, each of which shall be wholly within a senate dis- 
 trict formed under the same apportionment, equal to the 
 number of members of assembly to which such county 
 shall be entitled, and shall cause to be filed in the ofiBce 
 of the secretary of state and of the clerk of such county, 
 a description of such districts, specifying the number of 
 each district and of the inhabitants thereof, excluding 
 aliens, according to the last preceding enumeration ; and 
 such apportionment and districts shall remain unaltered 
 until another enumeration shall be made, as herein pro- 
 vided; but said division of the city of Brooklyn and the 
 county of Kings to be made on the second Tuesday of 
 June, one thousand eight hundred and ninety-five, shall 
 be made by the common council of the said city and the 
 board of supervisors of said county, assembled in joint 
 session. In counties having more than one senate dis- 
 trict, the same number of assembly districts shall be put 
 in each senate district, unless the assembly districts can- 
 
346 Constitutional History of New York, 
 
 not be evenly divided among the senate districts of any 
 county, in which case one more assembly district shall be 
 put in the senate district in such county having the 
 largest, or one less assembly district shall be put in the 
 senate district in such county having the smallest, num- 
 ber of inhabitants, excluding aliens, as the case may 
 require. No town, and no block in a city inclosed by 
 streets or public ways, shall be divided in the formation 
 of assembly districts, nor shall any district contain a 
 greater excess in population over an adjoining district 
 in the same senate district than the population of a town 
 or block therein adjoining such assembly district. Towns 
 or blocks which, from their location, may be included 
 in either of two districts, shall be so placed as to make 
 said districts most nearly equal in number of inhab- 
 itants, excluding aliens ; but in the division of cities under 
 the first apportionment, regard shall be had to the num- 
 ber of inhabitants, excluding aliens, of the election dis- 
 tricts according to the state enumeration of one thousand 
 eight hundred and ninety-two, so far as may be, instead 
 of blocks. Nothing in this section shall prevent the 
 division, at any time, of counties and towns, and the erec- 
 tion of new towns by the legislature. 
 
 An apportionment by the legislature, or other body, 
 shall be subject to review by the supreme court, at the 
 suit of any citizen, under such reasonable regulations as 
 the legislature may prescribe ; and any court before which 
 a cause may be pending involving an apportionment shall 
 give precedence thereto over all other causes and proceed- 
 ings, and if said court be not in session it shall convene 
 promptly for the disposition of the same. 
 
 [Const. 1777, art. S ; 1821, art. i, § 7 ; 1846, art. 3, § S ; Am. 1874.] 
 
 § 6. [Compensation of members.] — Each member 
 of the legislature shall receive for his services an annual 
 
The Fourth Constitution, 18^4. 347 
 
 salary of one thousand five hundred dollars. The mem- 
 bers of either house shall also receive the sum of one 
 dollar for every ten miles they shall travel in going to 
 and returning from their place of meeting, once in each 
 session, on the most usual route. Senators, when the 
 senate alone is convened in extraordinary session, or when 
 serving as members of the court for the trial of im- 
 peachments, and such members of the assembly, not ex- 
 ceeding nine in number, as shall be appointed managers 
 of an impeachment, shall receive an additional allowance 
 of ten dollars a day. 
 
 [Const. 1821, art. i, § 9; 1846, art 3, § 6; Am. 1874.] 
 
 § 7. [Members not to receive certain civil appoint- 
 ments.] — No member of the legislature shall receive 
 any civil appointment within this state, or the Senate of 
 the United States, from the governor, the governor and 
 senate, or from the legislature, or from any city gov- 
 ernment, during the time for which he shall have been 
 elected ; and all such appointments and all votes given for 
 any such member for any such office or appointment shall 
 be void. 
 
 [Const. 1821, art. i, § 10; 1846, art. 3. § 7; Am. 1874.] 
 
 § 8. [Certain officers disqualified as members.] — 
 
 No person shall be eligible to the legislature who, at the 
 time of his election, is, or within one hundred days pre- 
 vious thereto has been, a member of Congress, a civil 
 or military officer under the United States, or an officer 
 under any city government. And if any person shall, 
 after his election as a member of the legislature, be elected 
 to Congress, or appointed to any office, civil or military, 
 under the government of the United States, or under any 
 
348 Constitutional History of New York. 
 
 city government, his acceptance thereof shall vacate his 
 seat. 
 
 [Const. 1821, art. I, § 11; 1846, art. 3. § 8; Am. 1874.] 
 
 § g. [Time of elections.] — The elections of senators 
 and members of assembly, pursuant to the provisions of 
 this Constitution, shall be held on the Tuesday succeed- 
 ing the first Monday of November, unless otherwise 
 directed by the legislature. 
 
 [Const. 1821, art. i, § 15; 1846. art. 3, § 9.] 
 
 § 10. [Quorum; special powers of each house.] — 
 
 A majority of each house shall constitute a quorum to 
 do business. Each house shall determine the rules of 
 its own proceedings, and be the judge of the elections, 
 returns, and qualifications of its own members; shall 
 choose its own officers ; and the senate shall choose a tem- 
 porary president to preside in case of the absence or im- 
 peachment of the lieutenant governor, or when he shall 
 refuse to act as president, or shall act as governor. 
 
 [Const. 1777, art. 9; 1821, art. i, § 3; 1846, art. 3, § 10.] 
 
 § II. [Journals; public sessions; adjournments.]— 
 
 Each house shall keep a journal of its proceedings, and 
 publish the same, except such parts as may require 
 secrecy. The doors of each house shall be kept open, 
 except when the public welfare shall require secrecy. 
 Neither house shall, without the consent of the other, 
 adjourn for more than two days. 
 
 [Const 1777, art. 15; 1821, art. i, § 4; 1846, art. 3, § 11.] 
 
 § 12. [Privileges of members.] — For any speech or 
 debate in either house of the legislature, the members 
 shall not be questioned in any other place. 
 
 [Const. 1846, art 3, § 12.] 
 
The Fourth Constitution, i8p4. 349 
 
 § 13. [Bills may originate in either house.] — Any 
 bill may originate in either house of the legislature, and 
 all bills passed by one house may be amended by the other. 
 
 [Const. 1821, art I, § 8; 1846, art. 3, § 13.] 
 
 § 14. [Enacting clause.] — The enacting clause of 
 all bills shall be "The People of the state of New York, 
 represented in senate and assembly, do enact as follows," 
 and no law shall be enacted except by bill. 
 
 [Const. 1777, art. 31; 1846, art. 3, § 14.] 
 
 § 15, [Manner of passing bills.] — No bill shall be 
 passed or become a law unless it shall have been printed 
 and upon the desks of the members, in its final form, at 
 least three calendar legislative days prior to its final pas- 
 sage, unless the governor, or the acting governor, shall 
 have certified to the necessity of its immediate passage, 
 under his hand and the seal of the state; nor shall any 
 bill be passed or become a law except by the assent of a 
 majority of the members elected to each branch of the 
 legislature ; and upon the last reading of a bill, no amend- 
 ment thereof shall be allowed, and the question upon its 
 final passage shall be taken immediately thereafter, and 
 the yeas and nays entered on the journal. 
 
 [Const. 1846, art. 3, § 15.] 
 
 § 16. [Private and local bills limited to one sub- 
 ject.] — No private or local bill, which may be passed 
 by the legislature, shall embrace more than one subject, 
 and that shall be expressed in the title. 
 
 [Const 1846, art. 3, § 16.] 
 
 § 17. [Existing laws not applicable by reference.] — 
 
 No act shall be passed which shall provide that any 
 
350 Constitutional History of New York. 
 
 existing law, or any part thereof, shall be made or deemed 
 a part of said act, or which shall enact that any existing 
 law, or part thereof, shall be applicable, except by insert- 
 ing it in such act. 
 
 [Am. 1874.] 
 
 § 18. [Private and local bills limited; street rail- 
 roads.] — The legislature shall not pass a private or 
 local bill in any of the following cases : 
 
 Changing the names of persons. 
 
 Laying out, opening, altering, working, or discontinu- 
 ing roads, highways, or alleys, or for draining swamps 
 or other low lands. 
 
 Locating or changing county seats. 
 
 Providing for changes of venue in civil or criminal 
 cases. 
 
 Incorporating villages. 
 
 Providing for election of members of boards of super- 
 visors. 
 
 Selecting, drawing, summoning, or impaneling grand 
 or petit jurors. 
 
 Regulating the rate of interest on money. 
 
 The opening and conducting of elections or designat- 
 ing places of voting. 
 
 Creating, increasing, or decreasing fees, percentage, or 
 allowances of public officers, during the term for which 
 said officers are elected or appointed. 
 
 Granting to any private corporation, association, or 
 individual any exclusive privilege, immunity, or franchise 
 whatever. 
 
 Providing for building bridges, and chartering com- 
 panies for such purposes, except on the Hudson river 
 below Waterford, and on the East river, or over the 
 waters forming a part of the boundaries of the state. 
 
The Fourth Constitution, 1894. 351 
 
 The legislature shall pass general laws providing for 
 the cases enumerated in this section, and for all other 
 cases which, in its judgment, may be provided for by- 
 general laws. But no law shall authorize the construc- 
 tion or operation of a street railroad except upon the 
 condition that the consent of the owners of one half in 
 value of the property bounded on, and the consent also 
 of the local authorities having the control of, that por- 
 tion of a street or highway upon which it is proposed 
 to construct or operate such railroad be first obtained, 
 or, in case the consent of such property owners cannot 
 be obtained, the appellate division of the supreme court, 
 in the department in which it is proposed to be con- 
 structed, may, upon application, appoint three commis- 
 sioners, who shall determine, after a hearing of all par- 
 ties interested, whether such railroad ought to be con- 
 structed or operated, and their determination, confirmed 
 by the court, may be taken in lieu of the consent of 
 the property owners. 
 
 [Am. 1874; Am. 1901.] 
 
 § 19. [Private claims not to be audited by legisla- 
 ture.] — The legislature shall neither audit nor allow 
 any private claim or account against the state, but may 
 appropriate money to pay such claims as shall have been 
 audited and allowed according to law. 
 
 [Am. 1874.] 
 
 § 20. [Two-thirds bills.] — The assent of two thirds 
 of the members elected to each branch of the legislature 
 shall be requisite to every bill appropriating the public 
 moneys or property for local or private purposes. 
 
 [Const. 1821, art. 7, § 9; 1846, art. i, § 9.] 
 
352 Constitutional History of New York. 
 
 § 21. [Appropriation bills.] — No money shall ever 
 be paid out of the treasury of this state, or any of its 
 funds, or any of the funds under its management, except 
 in pursuance of an appropriation by law ; nor unless such 
 payment be made within two years next after the passage 
 of such appropriation act; and every such law making a 
 new appropriation, or continuing or reviving an appro- 
 priation, shall distinctly specify the sum appropriated, 
 and the object to which it is to be applied; and it sbj&ll 
 not be sufficient for such law to refer to any other law 
 to fix such sum. 
 
 [Const. 1846, art. 7, § 8.] 
 
 § 22. [Appropriation bills not to embrace other 
 subjects.] — No provision or enactment shall be em- 
 braced in the annual appropriation or supply bill, unless 
 it relates specifically to some particular appropriation 
 in the bill ; and any such provision or enactment shall be 
 limited in its operation to such appropriation. 
 
 [New.] 
 
 § 23. [Commission bills excepted from certain sec- 
 tions.] — Sections seventeen and eighteen of this arti- 
 cle shall not apply to any bill, or the amendments to any 
 bill, which shall be reported to the legislature by com- 
 missioners who have been appointed pursuant to law to 
 revise the statutes. 
 
 [Am. 1874.] 
 
 § 24. [Tax law to state amount and object of tax.] 
 
 — Every law which imposes, continues, or revives a tax 
 shall distinctly state the tax and the object to which it 
 is to be applied, and it shall not be sufficient to refer to 
 any other law to fix such tax or object. 
 
 [Const. 1846, art. 7, § 13.] 
 
The Fourth Constitution, 1894. 353 
 
 § 25. [Three-fifths bills.] — On the final passage, in 
 either house of the legislature, of any act which imposes, 
 continues, or revives a tax, or creates a debt or charge, 
 or makes, continues, or revives any appropriation of 
 public or trust money or property, or releases, discharges, 
 or commutes any claim or demand of the state, the ques- 
 tion shall be taken by yeas and nays, which shall be 
 duly entered upon the journals, and three fifths of all 
 the members elected to either house shall, in all such 
 cases, be necessary to constitute a quorum therein. 
 
 [Const. 1846, art. 7, § 14.] 
 
 § 26. [Boards of supervisors.] — There sl,iall be in 
 the several counties, except in cities whose boundaries 
 are the same as those of the county, a board of super- 
 visors, to be composed of such members, and elected in 
 such manner, and for such period, as is or may be pro- 
 vided by law. In any such city the duties and powers of 
 a board of supervisors may be devolved upon the com- 
 mon council or board of aldermen thereof. 
 
 [Am. 1874; Am. 1899.] 
 
 § 27. [Powers of boards of supervisors.] — The leg- 
 islature shall, by general laws, confer upon the boards of 
 supervisors of the several counties of the state such fur- 
 ther powers of local legislation and administration as the 
 legislature may, from time to time, deem expedient. 
 
 [Const. 1846, art. 3, % 17; Am. 1874.] 
 
 § 28. [Extra compensation prohibited.] — The leg- 
 islature shall not, nor shall the common council of any 
 city, nor any board of supervisors, grant any extra com- 
 pensation to any public officer, servant, agent, or con- 
 tractor. 
 
 [Am. 1874.] 
 Vol. I. Const. Hist. — 23. 
 
354 Constitutional History of New York. 
 
 § 2g. [Prison labor regulated.] — The legislature 
 shall, by law, provide for- the occupation and employment 
 of prisoners sentenced to the several state prisons, peni- 
 tentiaries, jails, and reformatories in the state; and on 
 and after the first day of January, in the year one thou- 
 sand eight hundred and ninety-seven, no person in any 
 such prison, penitentiary, jail, or reformatory shall be 
 required or allowed to work, while under sentence there- 
 to, at any trade, industry, or occupation, wherein or 
 whereby his work, or the product or profit of his work, 
 shall be farmed out, contracted, given, or sold to any 
 person, firm, association, or corporation. This section 
 shall not be construed to prevent the legislature from 
 providing that convicts may work for, and that the prod- 
 ucts of their labor may be disposed of to, the state or 
 any political division thereof, or for or to any public 
 institution owned or managed and controlled by the state 
 or any political division thereof. 
 
 [New.] 
 
 ARTICLE IV. 
 [The Executive.] 
 
 Section i. [Governor and lieutenant governor; 
 term of office.] — The executive power shall be vested 
 in a governor, who shall hold his office for two years; 
 a lieutenant governor shall be chosen at the same time, 
 and for the same term. The governor and lieutenant 
 governor elected next preceding the time when this sec- 
 tion shall take effect shall hold office until and including 
 the thirty-first day of December, one thousand eight hun- 
 dred and ninety-six, and their successors shall be chosen 
 at the general election in that year. 
 
 [Const. 1777, arts. 17, 20; 1821, art. 3. § 1 ; 1846, art. 4, § i; Am. 
 1874.] 
 
The Fourth Constitution, 1894. 355 
 
 § 2. [Qualifications of governor and lieutenant 
 governor.] — No person shall be eligible to the office 
 of governor or lieutenant governor, except a citizen of 
 the United States, of the age of not less than thirty years, 
 and who shall have been, five years next preceding his 
 election, a resident of this state. 
 
 [Const. 1777, art. 17; 1821, art. 3, § 2; 1846, art. 4, § 2; Am. 1874.] 
 
 § 3. [Election of governor and lieutensmt gov- 
 ernor.] — The governor and lieutenant governor shall 
 be elected at the times and places of choosing members 
 of the assembly. The persons respectively having the 
 highest number of votes for governor and lieutenant 
 governor shall be elected ; but in case two or more shall 
 have an equal and the highest number of votes for gov- 
 ernor, or for lieutenant g'overnor, the two houses of the 
 legislature, at its next annual session, shall forthwith, by 
 joint ballot, choose one of the said persons so having an 
 equal and the highest number of votes for governor or 
 lieutenant governor. 
 
 [Const. 1777, art. 17; 1821, art. 3, § 3; 1846, art. 4, § 3.] 
 
 § 4. [Governor's general powers; compensation.] 
 
 — The governor shall be commander-in-chief of the 
 military and naval forces of the state. He shall have 
 power to convene the legislature, or the senate only, on 
 extraordinary occasions. At extraordinary sessions no 
 subject shall be acted upon except such as the governor 
 may recommend for consideration. He shall communi- 
 cate by message to the legislature at every session the 
 condition of the state, and recommend such matters to 
 it as he shall judge expedient. He shall transact all 
 necessary business with the officers of government, civil 
 and military. He shall expedite all such measures as 
 
356 Constitutional History of New York. 
 
 may be resolved upon by the legislature, and shall take 
 care that the laws are faithfully executed. He shall 
 receive for his services an annual salary of ten thousand 
 dollars, and there shall be provided for his use a suitable 
 and furnished executive residence. 
 
 [Const. 1777, art. 18; 1821, art. 3, § 4; 1846, art. 4, § 4; Am. 1874.] 
 
 § 5. [Pardons, reprieves, and commutations.] — 
 The governor shall have the power to grant reprieves, 
 commutations, and pardons after conviction, for all of- 
 fenses except treason and cases of impeachment, upon 
 such conditions, and with such restrictions arid limita- 
 tions, as he may think proper, subject to such regulations 
 as may be provided by law relative to the manner of 
 applying for pardons. Upon conviction for treason, he 
 shall have power to suspend the execution of the sen- 
 tence until the case shall be reported to the legislature at 
 its next meeting, when the legislature shall either pardon 
 or commute the sentence, direct the execution of the sen- 
 tence, or grant a further reprieve. He shall annually 
 communicate to the legislature each case of reprieve, 
 commutation, or pardon granted, stating the name of the 
 convict, the crime of which he was convicted, the sentence 
 and its date, and the date of the commutation, pardon, 
 or reprieve. 
 
 [Const. 1777, art. 18; 1821, art. 3, § 5; 1846, art. 4, § 5.] 
 
 § 6. [When lieutenant governor to act as gov- 
 ernor.] — In case of the impeachment of the governor, 
 or his removal from office, death, inability to discharge 
 the powers and duties of the said office, resignation, or 
 absence from the state, the powers and duties of the 
 office shall devolve upon the lieutenant governor for the 
 residue of the term, or until the disability Shall cease. 
 
The Fourth Constitution, 1894. 357 
 
 But when the governor shall, with the consent of the 
 legislature, be out of the state, in time of war, at the 
 head of a military force thereof, he shall continue com- 
 mander-in-chief of all the military force of the state. 
 
 [Const. 1777, art. 20; 1821, art. 3, i 6; 1846, art. 4, § 6.] 
 
 § 7. [Lieutenant governor to be president of sen- 
 ate; gubernatorial succession.] — The lieutenant gov- 
 ernor shall possess the same qualifications of eligibility 
 for office as the governor. He shall be president of the 
 senate, but shall have only a casting vote therein. If, 
 during a vacancy of the office of governor, the lieutenant 
 governor shall be impeached, displaced, resign, die, or 
 become incapable of performing the duties of his office, 
 or be absent from the state, the president of the senate 
 shall act as governor until the vacancy be filled or the 
 disability shall cease; and if the president of the senate, 
 for any of the above causes, shall become incapable of 
 performing the duties pertaining to the office of gover- 
 nor, the speaker of the assembly shall act as governor 
 until the vacancy be filled or the disability shall cease. 
 
 [Const. 1777, art. 20; 1821, art. 3, § 7; 1846, art. 4, § 7.] 
 
 § 8. [Lieutenant governor's compensation.] — The 
 
 lieutenant governor shall receive for his services an an- 
 nual salary of five thousand dollars, and shall not receive 
 or be entitled to any other compensation, fee, or per- 
 quisite, for any duty or service he may be required to 
 perform by the Constitution or by law. 
 
 [Const. 1846, art. 4, § 8; Am. 1874.] 
 
 § 9. [Governor's legislative powers.] — Every bill 
 which shall have passed the senate and assembly shall, 
 before it becomes a law, be presented to the governor; 
 
358 Constitutional History of New York. 
 
 if he approve, he shall sign it ; but if not, he shall return 
 it, with his objections, to the house in which it shall have 
 originated, which shall enter the objections at large on 
 the journal, and proceed to reconsider it. If, after such 
 reconsideration, two thirds of the members elected to 
 that house shall agree to pass the bill, it shall be sent, 
 together with the objections, to the other house, by which 
 it shall likewise be reconsidered ; and if approved by two 
 thirds of the members elected to that house, it shall 
 become a law notwithstanding the objections of the gov- 
 ernor. In all such cases the votes in both houses shall 
 be determined by yeas and nays, and the names of the 
 members voting shall be entered on the journal of each 
 house respectively. If any bill shall not be returned by 
 the governor within ten days (Sundays excepted) after 
 it shall have been presented to him, the same shall be a 
 law in like manner as if he had signed it, unless the 
 legislature shall, by their adjournment, prevent its re- 
 turn, in which case it shall not become a law without the 
 approval of the governor. No bill shall become a law 
 after the final adjournment of the legislature, unless 
 approved by the governor within thirty days after such 
 adjournment. If any bill presented to the governor con- 
 tain several items of appropriation of money, he may 
 object to one or more of such items while approving of 
 the other portion of the bill. In such case, he shall ap- 
 pend to the bill, at the time of signing it, a statement of 
 the items to which he objects; and the appropriation so 
 objected to shall not take effect. If the legislature be 
 in session, he shall transmit to the house in which the bill 
 originated a copy of such statement, and the items ob- 
 jected to shall be separately reconsidered. If, on recon- 
 sideration, one or more of such items be approved by 
 two thirds of the members elected to each house, the 
 same shall be part of the law, notwithstanding the ob- 
 
The Fourth Constitution, 18^4. 359 
 
 jections of the governor. All the provisions of this sec- 
 tion, in relation to bills not approved by the governor, 
 shall apply in cases in which he shall withhold his ap- 
 proval from any item or items contained in a bill appro- 
 p;-iating money. 
 
 [Const. 1777, art 3; 1821, art. i, § 12; 1846, art. 4, i 9; Am. 1874.] 
 
 ARTICLE V. 
 [State Officers; CivrL. Service.] 
 
 Section i. [State officers, election and compensa- 
 tion.] — The secretary of state, comptroller, treasurer, 
 attorney general, and state engineer and surveyor shall 
 be chosen at a general election, at the times and places 
 of electing the governor and lieutenant governor, and 
 shall hold their offices for two years, except as provided 
 in section two of this article. Each of the officers in 
 this article named, excepting the speaker of the assembly, 
 shall, at stated times during his continuance in office, 
 receive for his services a compensation which shall not 
 be increased or diminished during the term for which he 
 shall have been elected; nor shall he receive to his use 
 any fees or perquisites of office or other compensation. 
 No person shall be elected to the office of state engineer 
 and surveyor who is not a practical civil engineer. 
 
 [Const. 1777, art. 23; 1821, art. 4, § 6," 1846, art. 5, §§ i, 2.] 
 
 § 2. [First election under this Constitution.] — 
 The first election of the secretary of state, comptroller, 
 treasurer, attorney general, and state engineer and sur- 
 veyor, pursuant to this article, shall be held in the year 
 one thousand eight hundred and ninety-five, and their 
 terms of office shall begin on the first day of January 
 following, and shall be for three years. At the general 
 election in the year one thousand eight hundred and 
 
360 Constitutional History of New York. 
 
 ninety-eight, and every two years thereafter, their suc- 
 cessors shall be chosen for the term of two years. 
 
 [New. Temporary.^ 
 
 § 3. [Superintendent of public works.] — A super- 
 intendent of public works shall be appointed by the gov- 
 ernor, by and with the advice and consent of the senate, 
 and hold his office until the end of the term of the gov- 
 ernor by whom he was nominated, and until his successor 
 is appointed and qualified. He shall receive a compen- 
 sation to be fixed by law. He shall be required by law 
 to give security for the faithful execution of his office 
 before entering upon the duties thereof. He shall be 
 charged with the execution of all laws relating to the 
 repair and navigation of the canals, and also of those 
 relating to the construction and improvement of the 
 canals, except so far as the execution of the laws relating 
 to such construction or improvement shall be confided to 
 the state engineer and surveyor; subject to the control 
 of the legislature, he shall make the rules and regulations 
 for the navigation or use of the canals. He may be 
 suspended or removed from office by the governor when- 
 ever, in his judgment, the public interest shall so require; 
 but in case of the removal of such 'superintendent of 
 public works from office, the governor shall file with the 
 secretary of state a statement of the cause of such re- 
 moval, and shall report such removal and the cause 
 thereof to the legislature at its next session. The super- 
 intendent of public works shall appoint not more than 
 three assistant superintendents, whose duties shall be 
 prescribed by him, subject to modification by the legis- 
 lature, and who shall receive for their services a com- 
 pensation to be fixed by law. They shall hold their office 
 for three years, subject to suspension or removal by the 
 superintendent of public works, whenever, in his judg- 
 
The Fourth Constitution, i8p4. 361 
 
 ment, the public interest shall so require. Any vacancy 
 in the office of any such assistant superintendent shall be 
 filled, for the remainder of the term for which he was 
 appointed, by the superintendent of public works ; but in 
 case of the suspension or removal of any such assistant 
 superintendent by him, he shall at once report to the 
 governor, in writing, the cause of such removal. All 
 other persons employed in the care and management of 
 the canals, except collectors of tolls, and those in the 
 department of the state engineer and surveyor, shall be 
 appointed by the supei-intendent of public works, and be 
 subject to suspension or removal by him. The superin- 
 tendent of public w;oidcs shall perform all the duties of 
 the former canal commissioners and board of 'canal com- 
 missioners, as now declared by law, until otherwise pro- 
 vided by the legislature. The governor, by and with the 
 advice and consent of the senate, shall have power to fill 
 vacancies in the office of superintendent of public works ; 
 if the senate be not in session, he may grant commissions 
 which shall expire at the end of the next succefeding ses- 
 sion of the senate. 
 
 [Am. 1876.] 
 
 § 4. [Superintendent of state prisons.] — A superin- 
 tendent of state prisons shall be appointed by the gov- 
 ernor, by and with the advice and consent of the senate, 
 and hold his office for five years, unless sooner removed ; 
 he shall give security in such amount, and with such 
 sureties, as shall be required by law for the faithful dis- 
 charge of his duties; he shall have the superintendence, 
 management, and control of state prisons, subject to such 
 laws as now exist or may hereafter be enacted; he shall 
 appoint the agents, wardens, physicians, and chaplains 
 of the prisons. The agent and warden of each prison 
 shall appoint all other officers of such prison, except the 
 
362 Constitutional History of New York. 
 
 clerk, subject to the approval of the same by the super- 
 intendent. The comptroller shall appoint the clerks of 
 the prisons. The superintendent shall have all the pow- 
 ers and perform all the duties not inconsistent herewith, 
 which were formerly had and performed by the inspectors 
 of state prisons. The governor may remove the super- 
 intendent for cause at any time, giving to him a copy of 
 the charges against him, and an opportunity to be heard 
 in his defense. 
 
 [Const 1846, art. 5, § 4; Am. 1876.] 
 
 § 5. [Commissioners of the land office and canal 
 fund; canal board.] — The lieutenant governor, speak- 
 er of the assembly, secretary of state, comptroller, treas- 
 urer, attorney general, and state engineer and surveyor 
 shall be the commissioners of the land office. The lieu- 
 tenant governor, secretary of state, comptroller, treas- 
 urer, and attorney general shall be the commissioners of 
 the canal fund. The canal board shall consist of the 
 commissioners of the canal fund, the state engineer and 
 surveyor, and the superintendent of public works. 
 
 [Const. 1846, art. 5, § 5.] 
 
 § 6. [Powers and duties of boards.] — Tne powers 
 and duties of the respective boards, and of the several 
 officers in this article mentioned, shall be such as now 
 are or hereafter may be prescribed by law. 
 
 [Const. 1846, art. 5, § 6.] 
 
 §7. [Suspension of treasurer.] — The treasurer 
 may be suspended from office by the governor, during 
 the recess of the legislature, and until thirty days after 
 the commencement of the next session of the legislature, 
 whenever it shall appear to him that such treasurer has. 
 
The Fourth Constitution, 18^4. 363 
 
 in any particular, violated his duty. The governor shall 
 appoint a competent person to discharge the duties of the 
 office during such suspension of the treasurer. 
 
 [Const 1846, art 5, § 7.] 
 
 § 8. [Certain offices abolished.] — All offices for the 
 weighing, gauging, measuring, culling, or inspecting any 
 merchandise, produce, manufacture, or commodity what- 
 ever, are hereby abolished ; and no such office shall here- 
 after be created by law ; but nothing in this section con- 
 tained shall abrogate any office created for the purpose 
 of protecting the public health or the interests of the 
 state in its property, revenue, tolls, or purchases, or of 
 supplying the people with correct standards of weights 
 snd measures, or shall prevent the creation of any office 
 for such purposes hereafter. 
 
 [Const. 1846, art. 5, § 8.] 
 
 § 9. [Civil service.] — Appointments and promo- 
 tions in the civil service of the state, and of all the civil 
 divisions thereof, including cities and villages, shall be 
 made according to merit and fitness, to be ascertained, so 
 far as practicable, by examinations, which, so far as prac- 
 ticable, shall be competitive; provided, however, that 
 honorably discharged soldiers and sailors from the Army 
 and Navy of the United States in tlie late Civil War, who 
 are citizens and residents of this state, shall be entitled 
 to preference in appointment and promotion without 
 regard to their standing on any list from which such 
 appointment or promotion may be made. Laws shall be 
 made to provide for the enforcement of. this section. 
 
 [New.] 
 
364 Constitutional History of New York. 
 
 ARTICLE VI. 
 [Judiciary.] 
 
 § I. [Supreme court; how constituted; judicial dis- 
 tricts.] — The supreme court is continued with general 
 jurisdiction in law and equity, subject to such appellate 
 jurisdiction of the court of appeals as nOw is or may be 
 prescribed by law not inconsistent with this article. The 
 existing judicial districts of the state are continued until 
 changed, as hereinafter provided. The supreme court 
 shall consist of the justices now in office, and of the 
 judges transferred thereto by the fifth section of this 
 article, all of whom shall continue to be justices of the 
 supreme court during their respective terms, and of 
 twelve additional justices, who shall reside in, and be 
 chosen by the electors of, the several existing judicial 
 districts, three in the first district, three in the second, 
 and one in each of the other districts ; and of their suc- 
 cessors. The successors of said justices shall be chosen 
 by the electors of their respective judicial districts. The 
 legislature may alter the judicial districts once after 
 every enumeration under the Constitution, of the inhabi- 
 tants of the state, aijd thereupon reapportion the justices 
 to be thereafter elected in the districts so altered. 
 
 [Const. 1821, art. 5, § 4; 1846, art. 6, § 3; 1869, art. 6, § 6; Am. 
 1882, § 28.] See this section in vol. 4 for amendment of 1905. 
 
 § 2. [Appellate division.] — The legislature shall 
 divide the state into four judicial departments. The 
 first department shall consist of the county of New York ; 
 the others shall be bounded by county lines, and be com- 
 pact and equal in population as nearly as may be. Once 
 every ten years the legislature may alter the judicial 
 departments, but without increasing the number thereof. 
 
 There shall be an appellate division of the supreme 
 
The Fourth Constitution, 1894. 3^5 
 
 court, consisting of seven justices in the first department, 
 and of five justices in each of the other departments. 
 In each department four shall constitute a quorum, and 
 the concurrence of tliree shall be necessary to a decision. 
 Xo more than five justices shall sit in any case. 
 
 From all the justices elected to the supreme court the 
 governor shall designate those who shall constitute the 
 appellate division in each department; and he shall des- 
 ignate the presiding justice thereof, who shall act as 
 such during his term of office, and shall be a resident of 
 the department. The other justices shall be designated 
 for terms of five years, or the unexpired portions of 
 their respective terms of office, if less than five years. 
 From time to time, as the terms of such designations 
 expire, or \"acancies occur, he shall make new designa- 
 tions. He may also make temporan.- designations in 
 case of the absence or inability to act of any justice in 
 the appellate division. A majoritv' of the justices desig- 
 nated to sit in the appellate division in each department 
 sliall be residents of the department, ^\^henever the 
 appellate division in any department shall be unable to 
 dispose of its business within a reasonable time, a ma- 
 ioritv of the presiding justices of the several depart- 
 ments, at a meeting called by tlie presiding justice of the 
 departoient in arrears, may transfer any pending appeals 
 from such department to any other department for hear- 
 ing and determination. Xo justice of the appellate divi- 
 sion shall exercise any of the powers of a justice of the 
 supreme court, other than those of a justice out of court, 
 and those pertaining to the appellate division or to the 
 hearing and decision of motions submitted by consent of 
 counsel. From and after the last day of December, one 
 thousand eight hundred and ninety-five, tlie appellate 
 division shall have the jurisdiction now exercised by tlie 
 supreme court at its g-eneral terms, and by tlie general 
 
366 Constitutional History of New York. 
 
 terms of the court of common pleas for the city and 
 county of New York, the superior court of the city of 
 New York, the superior court of Buffalo and the cit}' 
 court of Brooklyn, and such additional jurisdiction as 
 may be conferred by the legislature. It shall have power 
 to appoint and remove a reporter. 
 
 The justices of the appellate division in each depart- 
 ment shall have power to fix the times and places for 
 holding special and trial terms therein, and to assign the 
 justices in the departments to hold such terms; or to 
 make rules therefor. 
 
 [Const 1846, art. 6, § 6; 1869, art. 6, § 7; Am. 1899.] See this 
 section in vol. 4 for amendment of 1905. 
 
 § 3- [Judge not to sit in review of his own decision ; 
 proceedings in law and equity.] — No judge or justice 
 shall sit in the appellate division or in the court of ap- 
 peals in review of a decision made by him or by any 
 court of which he was at the time a sitting member. 
 The testimony in equity cases shall be taken in like man- 
 ner as in cases at law; and, except as herein otherwise 
 provided, the legislature shall have the same power to 
 alter and regulate the jurisdiction and proceedings in 
 law and in equity that it has heretofore exercised. 
 
 [Const. 1846, art. 6, § 10; 1869, art. 6, § 8.] 
 
 § 4. [Vacancies in supreme court.] — The official 
 terms of the justices of the supreme court shall be four- 
 teen years from and including the first day of January 
 next after their election. When a vacancy shall occur 
 otherwise than by expiration of term in the office of 
 justice of the supreme court, the same shall be filled for 
 a full term, at the next general election, happening not 
 less than three months after such vacancy occurs; and, 
 until the vacancy shall be so filled, the governor, by and 
 
The Fourth Constitution, 18^4. 367 
 
 with the advice and consent of the senate, if the senate 
 shall be in session, or, if not in session, the governor, 
 may fill such vacancy by appointment, which shall con- 
 tinue until and including the last day of December next 
 after the election at which the vacancy shall be filled. 
 
 [Const. 1821, art. 4, § 7 ; 1846, art. 6, § 13 ; 1869, art. 6, § 9.] 
 
 § 5. [Certain local courts abolished.] — The su- 
 perior court of the city of New York, the court of com- 
 mon pleas for the city and county of New York, the 
 superior court of Bufifalo, and the city court of Brook- 
 lyn, are abolished from and after the first day of Jan- 
 uary, one thousand eight hundred and ninety-six, and 
 thereupon the seals, records, papers, and documents of 
 or belonging to such courts, shall be deposited in the 
 offices of the clerks of the several counties in which said 
 courts now exist; and all actions and proceedings then 
 pending in such courts shall be transferred to the su- 
 preme court for hearing and determination. The judges 
 of said courts in office on the first day of January, one 
 thousand eight hundred and ninety-six, shall, for the 
 remainder of the term for which they were elected or 
 appointed, be justices of the supreme court; but they 
 shall sit only in the counties in which they were elected 
 or appointed. Their salaries shall be paid by the said 
 counties respectively, and shall be the same as the salaries 
 of the other justices of the supreme court, residing in 
 the same counties. Their successors shall be elected as 
 justices of the supreme court by the electors of the judi- 
 cial districts in which they respectively reside. 
 
 The jurisdiction now exercised by the several courts 
 hereby abolished shall be vested in the supreme court. 
 Appeals from inferior and local courts now heard in the 
 court of common pleas for the city and county of New 
 York and the superior court of Buffalo shall be heard 
 
368 Constitutional History of New York. 
 
 in the supreme court in such manner and by such justice 
 or justices as the appellate divisions in the respective de- 
 partments which include New York and Buffalo shall 
 direct, unless otherwise provided by the legislature. 
 
 [Judiciary Article, 1869, § 12 ; Am. 1880.] 
 
 § 6. [Circuit courts and courts of oyer and terminer 
 abolished.] — Circuit courts and courts of oyer and 
 terminer are abolished from and after the last day of 
 December, one thousand eight hundred and ninety-five. 
 All their jurisdiction shall thereupon be vested in the 
 supreme court, and all actions and proceedings then 
 pending in such courts shall be transferred to the supreme 
 court for hearing and determination. Any justice of the 
 supreme court, except as otherwise provided in this ar- 
 ticle, may hold court in any county. 
 [New.] 
 
 § 7. [Court of appeals.] — The court of appeals is 
 continued. It shall consist of the chief judge and asso- 
 ciate judges now in office, who shall hold their offices 
 until the expiration of their respective terms, and their 
 successors, who shall be chosen by the electors of the 
 state. The official terms of the chief judge and associate 
 judges shall be fourteen years from and including the 
 first day of January next after their election. Five 
 members of the court shall form a quorum, and the con- 
 currence of four shall be necessary to a decision. The 
 court shall have power to appoint and to remove its 
 reporter, clerk, and attendants. 
 
 [Const. 1846, art. 6, § 2; 1869, art. 6, § 2.] 
 
 § 8. [Vacancies in court of appeals.] — When a 
 vacancy shall occur otherwise than by expiration of term, 
 in the office of chief or associate judge of the court of 
 appeals, the same shall be filled, for a full term, at the 
 
The Fourth Constitution, 1894. 369 
 
 next general election happening not less than three 
 months after such vacancy occurs ; and until the vacancy 
 shall be so filled, the governor, by and with the advice 
 and consent of the senate, if the senate shall be in ses- 
 sion, or, if not in session, the governor, may fill such 
 vacancy by appointment. If any such appointment of 
 chief judge shall be made from among the associate 
 judges, a temporary appointment of associate judge shall 
 be made in like manner; but in such case, the person ap- 
 pointed chief judge shall not be deemed to vacate his 
 office of associate judge any longer than until the ex- 
 piration of his appointment as chief judge. The powers 
 and jurisdiction of the court shall not be suspended for 
 want of appointment or election, when the number of 
 judges is sufficient to constitute a quorum. All appoint- 
 ments under this section shall continue until and includ- 
 ing the last day of December next after the election at 
 which the vacancy shall be filled. 
 
 [Const. 1821, art. 4, § 7; 1846, art. 6, § 13; 1869, art. 6, § 3.] 
 
 § 9. [Jurisdiction of court of appeals.] — After the 
 last day of December, one thousand eight hundred and 
 ninety-five, the jurisdiction of the court of appeals, ex- 
 cept where the judgment is of death, shall be limited to 
 the review of questions of law. No unanimous decision 
 of the appellate division of the supreme court that there 
 is evidence supporting or tending to sustain a finding of 
 fact or a verdict not directed by the court shall be re- 
 viewed by the court of appeals. Except where the judg- 
 ment is of death, appeals may be taken, as of right, to 
 said court only from judgments or orders entered upon 
 decisions of the appellate division of the supreme court, 
 finally determining actions or special proceedings, and 
 from orders granting new trials on exceptions, where 
 the appellants stipulate that, upon affirmance, judgment 
 Vol. I. Const. Hist.— 24. 
 
370 Constitutional History of Neiv York. 
 
 absolute shall be rendered against them. The appellate 
 division in any department may, however, allow an ap- 
 peal upon any question of law which, in its opinion, 
 ought to be reviewed by the court of appeals. 
 
 The legislature may further restrict the jurisdiction 
 of the court of appeals and the right of appeal thereto, 
 but the right to appeal shall not depend upon the amount 
 involved. 
 
 The provisions of this section shall not apply to orders 
 made or judgments rendered by any general term before 
 the last day of December, one thousand eight hundred 
 and ninety-five, but appeals therefrom may be taken 
 under existing provisions of law. 
 
 [New.] 
 
 § lo. [Judges not to hold any other office.] — The 
 judges of the court of appeals and the justices of the 
 supreme court shall not hold any other office or public 
 trust. All votes for any of them, for any other than a 
 judicial office, given by the legislature or the people, shall 
 be void. 
 
 [Const. 1777, art. 28; 1821, art. 5, § 7; 1846, art. 6, § 8; 1869, 
 art. 6, § 10.] 
 
 § II. [Removal of judges.] — Judges of the court of 
 appeals and justices of the supreme court may be removed 
 by concurrent resolution of both houses of the legisla- 
 ture, if two thirds of all the members elected to each 
 house concur therein. All other judicial officers, except 
 justices of the peace and judges or justices of inferior 
 courts not of record, may be removed by the senate, on 
 the recommendation of the governor, if two thirds of 
 all the members elected to the senate concur therein. 
 But no officer shall be removed by virtue of this section 
 except for cause, which shall be entered on the journals. 
 
The Fourth Constitution, 1894. 371 
 
 nor unless he shall have been served with a statement 
 of the cause alleged, and shall have had an opportunity 
 to be heard. On the question of removal, the yeas and 
 nays shall be entered on the journal. 
 
 [Const. 1821, art. i, § 13; Am. 1845; 1846, art. 6, § 11; 1869, art. 
 6, S 12.] 
 
 § 12. [Compensation; age limit.] — The judges and 
 justices hereinbefore mentioned shall receive for their 
 services a compensation established by law, which shall 
 not be increased or diminished during their official terms, 
 except as provided in section five of this article. No 
 person shall hold the office of judge or justice of any 
 court longer than until and including the last day of 
 December next after he shall be seventy years of age. 
 No judge or justice elected after the first day of January, 
 one thousand eight hundred and ninety-four, shall be 
 entitled to receive any compensation after the last day 
 of December next after he shall be seventy years of age ; 
 but the compensation of every judge of the court of 
 appeals or justice of the supreme court elected prior to 
 the first day of January, one thousand eight hundred 
 and ninety-four, whose term of office has been, or whose 
 present term of office shall be, so abridged, and who shall 
 have served as such judge or justice ten years or more, 
 shall be continued during the remainder of the term for 
 which he was elected; but any such judge or justice 
 may, with his consent, be assigned by the governor, from 
 time to time, to any duty in the supreme court while his 
 compensation is so continued. 
 
 [Const. 1846, art 6, § 7; 1869, art. 6, §§ 13, 14; Am. 1880.] 
 
 § 13. [Impeachments.] — The assembly shall have 
 the power of impeachment, by a vote of a majority of 
 all the members elected. The court for the trial of im- 
 
372 Constitutional History of New York. 
 
 peachments shall be composed of the president of the 
 senate, the senators or the major part of them, and the 
 judges of the court of appeals, or the major part of 
 them. On the trial of an impeachment against the 
 governor or lieutenant governor, the lieutenant governor 
 shall not act as a member of the court. No judicial 
 officer shall exercise his office after articles of impeach- 
 ment against him shall have been preferred to the senate, 
 until he shall have been acquitted. Before the trial of 
 an impeachment the members of the court shall take an 
 oath or affirmation truly and impartially to try the im- 
 peachment according to the evidence, and no person shall 
 be convicted without the concurrence of two thirds of 
 the members present. Judgment in cases of impeach- 
 ment shall not extend further than to removal from 
 office, or removal from office and disqualification to hold 
 and enjoy any office of honor, trust, or profit under this 
 state; but the party impeached shall be Hable to indict- 
 ment and punishment according to law. 
 
 [Const. 1777, art. 33; 1821, art. s, § 2; 1846, art. 6, § i; 1S69, 
 art. 6, § I.] 
 
 § 14. [County Courts.] — The existing county 
 courts are continued, and the judges thereof now in 
 office shall hold their offices until the expiration of their 
 respective terms. In the county of Kings there shall 
 be two county judges and the additional county judge 
 shall be chosen at the next general election held after 
 the adoption of this article. The successors of the sev- 
 eral county judges shall be chosen by the electors of 
 the counties for the term of six years. County courts 
 shall have the powers and jurisdiction they now possess, 
 and also original jurisdiction in actions for the recovery 
 of money only, where the defendants reside in the county, 
 and in which the complaint demands judgment for a 
 
The Fourth Constitution, 18^4. 373 
 
 sum not exceeding two thousand dollars. The legisla- 
 ture may hereafter enlarge or restrict the jurisdiction 
 of the county courts, provided, however, that their juris- 
 diction shall not be so extended as to authorize an action 
 therein for the recovery of money only, in which the 
 sum demanded exceeds two thousand dollars, or in which 
 any person not a resident of the county is a defendant. 
 
 Courts of sessions, except in the county of New York, 
 are abolished from and after the last day of December, 
 one thousand eight hundred and ninety-five. All the 
 jurisdiction of the court of sessions in each county, except 
 the county of New York, shall thereupon be vested in 
 the county court thereof, and all actions and proceedings 
 then pending in such courts of sessions shall be trans- 
 ferred to said county courts for hearing and determina- 
 tion. Every county judge shall perform such duties as 
 may be required by law. His salary shall be established 
 by law, payable out of the county treasury. A cotmty 
 judge of any county may hold county courts in any other 
 county when requested by the judge of such other county. 
 
 [Const. 1777, art. 24; 1821, art. S, § 6; 1846, art. 6, § 14; 1869, 
 art. 6, § IS.] 
 
 § 15. [Surrogates' courts.] — The existing surro- 
 gates' courts are continued, and the surrogates now in 
 office shall hold their offices until the expiration of their 
 terms. Their successors shall be chosen by the electors 
 of their respective counties, and their terms of office 
 shall be six years, except in the county of New York, 
 where they shall continue to be fourteen years. Surro- 
 gates and surrogates' courts shall have the jurisdiction 
 and powers which the surrogates and existing surrogates' 
 courts now possess, until otherwise provided by the legis- 
 lature. The county judge shall be surrogate of his 
 county, except where a separate surrogate has been or 
 
374 Constitutional History of New York. 
 
 shall be elected. In counties having- a population exceed- 
 ing forty thousand, wherein there is no separate surro- 
 gate, the legislature may provide for the election of a 
 separate officer to be surrogate, whose term of office 
 shall be six years. When the surrogate shall be elected 
 as a separate officer his salary shall be established by 
 law, payable out of the county treasury. No county 
 judge or surrogate shall hold office longer than until 
 and including the last day of December next after he 
 shall be seventy years of age. Vacancies occurring in 
 the office of county judge or surrogate shall be filled in 
 the same manner as like vacancies occurring in the su- 
 preme court. The compensation of any county judge 
 or surrogate shall not be increased or diminished during 
 his term of office. For the relief of surrogates' courts 
 the legislature may confer upon the supreme court in 
 any county having a population exceeding four hundred 
 thousand, the powers and jurisdiction of surrogates, with 
 authority to try issues of fact by jury in probate cases. 
 
 [Const. 1777, art. 24; 1821, art. 5, § 6; 1846, art. 6, § 14; 1869, 
 art. 6, § IS.] 
 
 § 16. [Special county judge and surrogate.] — The 
 
 legislature may, on application of the board of super- 
 visors, provide for the election of local officei"s, not to 
 exceed two in any county, to discharge the duties of 
 county judge and of surrogate, in cases of their inability 
 or of a vacancy, and in such other cases as may be pro- 
 vided by law, and to exercise such other powers in special 
 cases as are or may be provided by law. 
 
 [Const. 1846, art. 6, § 15 ; 1869, art. 6; § i6.] 
 
 § 17. [Justices of the peace.] — The electors of the 
 several towns shall, at their annual town meetings, or 
 
The Fourth Constitution, 18^4. 375 
 
 at such other time and in such manner as the legislature 
 may direct, elect justices of the peace, whose term of 
 office shall be four years. In case of an election to fill 
 a vacancy occurring before the expiration of a full term, 
 they shall hold for the residue of the unexpired term. 
 Their number and classification may be regulated by law. 
 Justices of the peace, and judges or justices of inferior 
 courts not of record, and their clerks, may be removed 
 for cause, after due notice and an opportunity of being 
 heard, by such courts as are or may be prescribed by law. 
 Justices of the peace and district court justices may be 
 elected in the different cities of this state in such manner, 
 and with such powers, and for such terms, respectively, 
 as are or shall be prescribed by law; all other judicial 
 .officers in cities, whose election or appointment is not 
 otherwise provided for in this article, shall be chosen 
 by the electors of such cities, or appointed by some local 
 authorities thereof. 
 
 [Const. 1777, art. 24; 1821, art. 4, § 7; Am. 1826; 1846, art 6, § 17; 
 1869, art. 6, § 18.] 
 
 § 18. [Inferior local courts.] — Inferior local courts 
 of civil and criminal jurisdiction may be established by 
 the legislature, but no inferior local court hereafter 
 created shall be a court of record. The legislature shall 
 not hereafter confer upon any inferior or local 
 court of its creation, any equity jurisdiction, or any 
 greater jurisdiction in other respects than is conferred 
 upon county courts by or under this article. Except as 
 herein otherwise provided, all judicial officers shall be 
 elected or appointed at such times and in such manner 
 as the legislature may direct. 
 
 [Const. 1777, art. 24; 1821, art. S, § 6; 1846, art. 6, S 14; 1869, 
 art. 6, § 19.] 
 
376 Constitutional History of New York. 
 
 § 19. [Clerks of courts.] — Clerks of the several 
 counties shall be clerks of the supreme court, with such 
 powers and duties as shall be prescribed by law. The 
 justices of the appellate division in each department shall 
 have power to appoint and to remove a clerk, who shall 
 keep his office at a place to be designated by said justices. 
 The clerk of the court of appeals shall keep his office at 
 the seat of government. The clerk of the court of appeals 
 and the clerks of the appellate division shall receive com- 
 pensation, to be established by law and paid out of the 
 public treasury. 
 
 [Const. 1821, art. 4, § 9; 1846, art. 6, § 19; 1869, art. 6, § 20.] 
 
 § 20. [Certain judicial officers not to receive fees; 
 
 eligibility.] — No judicial officer, except justices of the 
 peace, shall receive to his own use any fees or perquisites 
 of office; nor shall any judge of the court of appeals, 
 or justice of the supreme court, or any county judge or 
 surrogate hereafter elected in a county liaving a popula- 
 tion exceeding one hundred and twenty thousand, prac- 
 tise as an attorney or counselor in any court of record 
 in this state, or act as referee. Tlie legislature may im- 
 pose a similar prohibition upon county judges and sur- 
 rogates in other counties. No one shall be eligible to 
 the office of judge of the court of appeals, justice of the 
 supreme court, or, except in the county of Hamilton, to 
 the office of county judge or surrogate, who is not an 
 attorney and counselor of this state. 
 
 [Const. 1846, art. 6, § 20; 1869, art. 6, § 21.] 
 
 § 21. [Publication of statutes; court reports.] — 
 
 The legislature shall provide for the speedy publication 
 of all statutes, and shall regulate the reporting of the 
 
The Fourth Qonstitution, 18^4. 377 
 
 decisions of the courts; but all laws and judicial de- 
 cisions shall be free for publication by any person. 
 
 [Const. 1846, art. 6, § 22; 1869, art. 6, § 23.] 
 
 § 22. [Local judicial officers, terms not abridged.] 
 
 — ^Justices of the peace and other local judicial officers 
 provided for in sections seventeen and eighteen, in office 
 when this article takes effect, shall hold their offices until 
 the expiration of their respective terms. 
 
 [Temporary. Const. 1869, art. 6, § 25.] 
 
 § 23. [Courts of special sessions.] — Courts of spe- 
 cial sessions shall have such jurisdiction of offenses of 
 the grade of misdemeanors as may be prescribed by law. 
 
 [Const. 1869, art. 6, § 26.] 
 
 ARTICLE VII. 
 [State Finance; Forest Preserve; Canals.] 
 
 Section i. [State credit limited.] — The credit of 
 the state shall not in any manner be given or loaned to 
 or in aid of any individual, association, or corporation. 
 
 [Const. 1846, art. 7, § 9.] 
 
 § 2. [When state may contract debt.] — The state 
 may, to meet casual deficits or failures in revenues, or 
 for expenses not provided for, contract debts; but such 
 debts, direct or contingent, singly or in the aggregate, 
 shall not at any time exceed one million of dollars ; and 
 the moneys arising from the loans creating such debts 
 shall be applied to the purpose for which they were ob- 
 tained, or to repay the debt so contracted, and to no 
 other purpose whatever. 
 
 [Const. 1846, art. 7, § lo.l 
 
378 Constitutional History of New York. 
 
 § 3. [Debts for state defense.] — In addition to the 
 above limited power to contract debts, the state may 
 contract debts to repel invasion, suppress insurrection, 
 or defend the state in war; but the money arising from 
 the contracting of such debts shall be applied to the pur- 
 pose for which it was raised, or to repay such debts, and 
 to no other purpose whatever. 
 
 [Const. 1846, art. 7, § 11.] 
 
 § 4. [How other debts authorized.] — Except the 
 debts specified in sections two and three of this article, 
 no debts shall be hereafter contracted by or on behalf 
 of this state, unless such debt shall be authorized by a 
 law, for some single work or object, to be distinctly speci- 
 fied therein; and such law shall impose and provide for 
 the collection of a direct annual tax to pay, and sufficient 
 to pay, the interest on such debt as it falls due, and also 
 to pay and discharge the principal of such debt within 
 eighteen years from the time of the contracting thereof. 
 No such law shall take effect until it shall, at a general 
 election, have been submitted to the people, and have 
 received a majority of all the votes cast for and against 
 it at such election. On the final passage of such bill in 
 either house of the legislature, the question shall be taken 
 by ayes and noes, to be duly entered on the journals 
 thereof, and shall be : "Shall this bill pass, and ought 
 the same to receive the sanction of the people?" 
 
 The legislature may, at any time after the approval of 
 such law by the people, if no debt shall have been con- 
 tracted in pursuance thereof, repeal the same; and may, 
 at any time, by law, forbid the contracting of any further 
 debt or liability under such law ; but the tax imposed by 
 such act, in proportion to the debt and liability which 
 may have been contracted in pursuance of such law, 
 shall remain in force and be irrepealable, and be annually 
 
The Fourth Constitution, i8p4. 379 
 
 collected, until the proceeds thereof shall have made the 
 provision hereinbefore specified to pay and discharge the 
 interest and principal of such debt and liability. The 
 money arising from any loan or stock creating such debt 
 or liability shall be applied to the work or object specified 
 in the act authorizing such debt or liability, or for the 
 repayment of such debt or liability, and for no other pur- 
 pose whatever. No such law shall be submitted to be 
 voted on, within three months after its passage, or at 
 any general election when any other law or any bill or 
 any amendment to the Constitution shall be submitted to 
 be voted for or against. 
 
 [Const. 1846, art. 7, § 12.] See this section in vol. 4 for amend- 
 ment of 1905. 
 
 § 5. [Sinking funds.] — The sinking funds provided 
 for the payment of interest and the extinguishment of 
 the principal of the debts of the state shall be separately 
 kept and safely invested, and neither of them shall be 
 appropriated or used in any manner other than for the 
 specific purpose for which it shall have been provided. 
 
 [Am. 1874.] 
 
 § 6. [Claims barred by statute of limitations.] — 
 
 Neither the legislature, canal board, nor any person or 
 persons acting in behalf of the state, shall audit, allow, 
 or pay any claim which, as between citizens of the state, 
 would be barred by lapse of time. This provision shall 
 not be construed to repeal any statute fixing the time 
 within which claims shall be presented or allowed, nor 
 shall it extend to any claim duly presented within the 
 time allowed by law, and prosecuted with due diligence 
 from the time of such presentment. But if the claimant 
 shall be under legal disability, the claim may be presented 
 within two years after such disability is removed. 
 
 [Am. 1874.] 
 
380 Constitutional History of New York. 
 
 § 7. [Forest preserve.] — The lands of the state, 
 now owned or hereafter acquired, constituting the forest 
 preserve as now fixed by law, shall be forever kept as 
 wild forest lands. They shall not be leased, sold, or 
 exchanged, or be taken by any corporation, public or 
 private, nor shall the timber thereon be sold, removed, 
 or destroyed. 
 
 [New.] 
 
 § 8. [Certain canals not to be sold.] — The legisla- 
 ture shall not sell, lease, or otherwise dispose of the Erie 
 canal, the Oswego canal, the Champlain canal, the Cayuga 
 and Seneca canal, or the Black River canal; but they 
 shall remain the property of the state and under its man- 
 agement forever. The prohibition of lease, sale, or other 
 disposition herein contained shall not apply to the canal 
 known as the Main and Hamburg street canal, situated 
 in the city of Buffalo, and which extends easterly from 
 the westerly line of Main street to the westerly line of 
 Hamburg street. All funds that may be derived from 
 any lease, sale, or other disposition of any canal shall be 
 applied to the improvement, superintendence, or repair 
 of the remaining portion of the canals. 
 
 [Const. 1846, art. 7, § 6; Am. 1874; Am. 1882.] 
 
 § g. -[Tolls prohibited; contracts.] — No tolls shall 
 hereafter be imposed on persons or property transported 
 on the canals, but all boats navigating the canals, and 
 the owners and masters thereof, shall be subject to such 
 laws and regulations as have been or may hereafter be 
 enacted concerning the navigation of the canals. The 
 legislature shall annually, by equitable taxes, make pro- 
 vision for the expenses of the superintendence and repairs 
 of the canals. All contracts for work or materials on 
 
The Fourth Constitution, 1894. 3^* 
 
 any canal shall be made with the persons who shall offer 
 to do or provide the same at the lowest price, with ade- 
 quate security for their performance. No extra com- 
 pensation shall be made to any contractor; but if, from 
 any unforeseen cause, the terms of any contract shall 
 prove to be unjust and oppressive, the canal board may, 
 upon the application of the contractor, cancel such con- 
 tract. 
 
 [Const. 1846, art. 7, § 3; Am. 1854; Am. 1874; Am. 1882.I 
 
 § 10. [Canal improvement.] — The canals may be 
 improved in such manner as the legislature shall provide 
 by law. A debt may be authorized for that purpose in 
 the mode prescribed by section four of this article, or 
 the cost of such improvement may be defrayed by the 
 appropriation of funds from the state treasury, or by 
 equitable annual tax. 
 
 [New.] See this article in vol. 4 for amendments of 1905. 
 
 ARTICLE VIII. 
 [Corporations and Charities.] 
 
 Section i. [Corporations, how formed.] — Corpora- 
 tions may be formed under general laws; but shall 
 not be created by special act, except for municipal pur- 
 ix)ses, and in cases where, in the judgment of the legis- 
 lature, the objects of the corporation cannot be attained 
 under general laws. All general laws and special acts 
 passed pursuant to this section may be altered from time 
 to time or repealed. 
 
 [Const. 1821, art. 7, § 9; 1846, art. 8, § i.] 
 
 § 2. [Dues of corporations, how secured.]^ — Dues 
 from corporations shall be secured by such individual 
 
382 Constitutional History of New York. 
 
 liability of the corporators and other means as may be 
 prescribed by law. 
 
 [Const. 1846, art. 8, § 2.] 
 
 § 3. [Corporation defined.] — The term corpora- 
 tions, as used in this article, shall be construed to include 
 all associations and joint-stock companies having any 
 of the powers or privileges of corporations not possessed 
 by individuals or partnerships. And all corporations 
 shall have the right to sue and shall be subject to be sued 
 in all courts in like cases as natural persons. 
 
 [Const. 1846, art. 8, § 3.] 
 
 § 4. [Banking corporations.] — The legislature shall, 
 by general law, conform all charters of savings 
 banks, or institutions for savings, to a uniformity of 
 powers, rights, and liabilities, and all charters hereafter 
 granted for such corporations shall be made to conform 
 to such general law, and to such amendments as maj' 
 be made thereto. And no such corporation shall have 
 any capital stock, nor shall the trustees thereof, or an)' 
 of them, have any interest whatever, direct or indirect, 
 in the profits of such corporation; and no director or 
 trustee of any such bank or institution shall be interested 
 in any loan or use of any money or property of such bank 
 or institution for savings. The legislature shall have no 
 power to pass any act granting any special charter for 
 banking purposes; but corporations or associations may 
 be formed for such purposes under general laws. 
 
 [Const. 1846, art. 8, § 4; Am. 1874.] 
 
 § 5. [Specie payments not to be suspended.] — The 
 
 legislature shall have no power to pass any law sanction- 
 ing in any manner, directly or indirectly, the suspension 
 
The Fourth Constitution, i8p4. 383 
 
 of specie payments by any person, association, or corpora- 
 tion, issuing bank notes of any description. 
 
 [Const. 1846, art 8, § 5.] 
 
 § 6. [Registry of bills and notes.] — The legislature 
 shall provide by law for the registry of all bills or notes, 
 issued or put in circulation as money, and shall require 
 ample security for the redemption of the same in specie. 
 
 [Const. 1846, art. 8, § 6.] 
 
 § 7. [Liability of stockholders.] — The stockholders 
 of every corporation and joint-stock association for bank- 
 ing purposes shall be individually responsible to the 
 amount of their respective share or shares of stock in 
 any such corporation or association, for all its debts and 
 liabilities of every kind. 
 
 [Const. 1846, art. 8, § 7.] 
 
 § 8. [Preference of billholders.] — In case of the in- 
 solvency of any bank or banking association, the bill- 
 holders thereof shall be entitled to preference in payment 
 over all other creditors of such bank or association. 
 
 [Const 1846, art. 8, § 8.] 
 
 § 9. [No state aid to individuals or corporations.] — 
 
 Neither the credit nor the money of the state shall be 
 given or loaned to or in aid of any association, corpora- 
 tion, or private undertaking. This section shall not, how- 
 ever, prevent the legislature from making such provision 
 for the education and support of the blind, the deaf and 
 dumb, and juvenile delinquents, as to it may seem proper. 
 Nor shall it apply to any fund or property now held, or 
 which may hereafter be held, by the state for educational 
 purposes. 
 
 [Const 1846, art. 7, S 9; Am. 1874; 1894, art. 7, § i.] 
 
384 Constitutional History of New York. 
 
 § 10. [Municipal aid prohibited, except for public 
 purposes; indebtedness limited.] — No county, city, 
 town, or village shall hereafter give any money or prop- 
 erty, or loan its money or credit to or in aid of any 
 individual, association, or corporation, or become directly 
 or indirectly the owner of stock in, or bonds of, any asso- 
 ciation or corporation; nor shall any such county, city, 
 town, or village be allowed to incur any indebtedness 
 except for county, city, town, or village purposes. This 
 section shall not prevent such county, city, town, or vil- 
 lage from making such provision for the aid or support 
 of its poor as may be authorized by law. No county or 
 city shall be allowed to become indebted for any purpose 
 or in any manner to an amount which, including existing 
 indebtedness, shall exceed ten per centum of the assessed 
 valuation of the real estate of such county or city, sub- 
 ject to taxation, as it appeared by the assessment-rolls 
 of said county or city on the last assessment for state 
 or county taxes prior to the incurring of such indebted- 
 ness; and all indebtedness in excess of such limitation, 
 except such as may now exist, shall be absolutely void, 
 except as herein otherwise provided. No county or city 
 whose present indebtedness exceeds ten per centum of 
 the assessed valuation of its real estate subject to taxa- 
 tion shall be allowed to become indebted in any further 
 amount until such indebtedness shall be reduced within 
 stich limit. This section shall not be construed to prevent 
 the issuing of certificates of indebtedness or revenue 
 bonds issued in anticipation of the collection of taxes 
 for amounts actually contained, or to be contained, in 
 the taxes for the year when such certificates or revenue 
 bonds are issued, and payable out of such taxes. 
 
 Nor shall this section be construed to prevent the issue 
 of bonds to provide for the supply of water; but the 
 term of the bonds issued to provide the supply of water 
 
The Fourth Constitution, i8p4. 385 
 
 shall not exceed twenty years, and a sinking fund shall 
 be created on the issuing of the said bonds for their re- 
 demption, by raising annually a sum which will produce 
 an amount equal to the sum of the principal and interest 
 of said bonds at their maturity. All certificates of in- 
 debtedness or revenue bonds issued in anticipation of 
 the collection of taxes, which are not retired within five 
 years after their date of issue, and bonds issued to pro- 
 vide for the supply of water, and any debt hereafter 
 incurred by any portion or part of a city, if there shall 
 be any such debt, shall be included in ascertaining the 
 power of the city to become otherwise indebted. When- 
 evei- hereafter the boundaries of any city shall become 
 the same as those of a county, the power of the county 
 to become indebted shall cease; but the debt of the county 
 at that time existing shall not be included as a part of 
 the city debt. The amount hereafter to be raised by tax 
 for county or city purposes, in any cotmty containing a 
 city of over one hundred thousand inhabitants, or any 
 such city of this state, in addition to providing for the 
 principal and interest of existing debt, shall not, in the 
 aggregate, exceed in any one year two per centum of 
 the assessed valuation of the real and personal estate of 
 such county or city, to be ascertained as prescribed in 
 this section in respect to county or city debt. 
 
 [Am. 1874; Am. 1884.] See this section in vol. 4 for amendment 
 of 1905. 
 
 § II. [State board of charities; lunacy and prison 
 commissions.] — The legislature shall provide for a 
 state board of charities, which shall visit and inspect 
 all institutions, whether state, county, municipal, incor- 
 porated, or not incorporated, which are of a charitable, 
 eleemosynary, correctional, or reformatory character, ex- 
 cepting only such institutions as are hereby made sub- 
 ject to the visitation and inspection of either of the 
 Vol. I. Const. Hist.— 25. 
 
386 Constitutional History of New York. 
 
 commissions hereinafter mentioned, but including all 
 reformatories except those in which adult males con- 
 victed of felony shall be confined; a state commission in 
 lunacy, which shall visit and inspect all institutions, either 
 public or private, used for the care and treatment of 
 the insane (not including institutions for epileptics or 
 idiots) ; a state commission of prisons which shall visit 
 and inspect all institutions used for the detention of 
 sane adults charged with or convicted of crime, or de- 
 tained as witnesses or debtors. 
 
 [New.] 
 
 § 12. [Commissioners, how appointed.] — The 
 members of the said board and of the said commissions 
 shall be appointed by the governor, by and with the 
 advice and consent of the senate; and any member may 
 be removed from office by the governor for cause, an 
 opportunity having been given him to be heard in his 
 defense. 
 
 [New.] 
 
 § 13. [Existing laws continued.] — Existing laws re- 
 lating to institutions referred to in the foregoing sections 
 and to their supervision and inspection, in so far as 
 such laws are not inconsistent with the provisions of the 
 Constitution, shall remain in force until amended or re- 
 pealed by the legislature. The visitation and inspection 
 herein provided for shall not be exclusive of other visita- 
 tion and inspection now authorized by law. 
 
 [New.] 
 
 § 14. [Maintenance of defectives and delinquents, 
 institutions and inmates.] — Nothing in this Constitu- 
 tion contained shall prevent the legislature from making 
 
The Fourth Constitution, 18^4.. 387 
 
 such provision for the education and support of the Wind, 
 the deaf and dumb, and juvenile delinquents, as to it 
 may seem proper; or prevent any county, city, town, or 
 village from providing for the care, support, maintenance, 
 and secular education, of inmates of orphan asylums, 
 homes for dependent children, or correctional institutions, 
 whether under public or private control. Payments by 
 counties, cities, towns, and villages to charitable, elee- 
 mosynary, correctional, and reformatory institutions, 
 wholly or partly under private control, for care, support, 
 and maintenance, may be authorized, but shall not be re- 
 quired by the legislature. No such payments shall be 
 made for any inmate of such institutions who is not 
 received and retained therein pursuant to rules estab- 
 lished by the state board of charities. Such rules shall 
 be subject to the control of the legislature by general 
 laws. 
 
 [New.] 
 
 § 15. [Commissioners continued in office.] — Com- 
 missioners of the state board of charities and commis- 
 sioners of the state commission in lunacy, now holding 
 office, shall be continued in office for the term for which 
 they were appointed, respectively, unless the legislature 
 shall otherwise provide. The legislature may confer upon 
 the commissions and upon the board mentioned in the 
 foregoing sections any additional powers that are not 
 inconsistent with other provisions of the Constitution. 
 
 [New.] 
 
 ARTICLE IX. 
 
 [Education.] 
 
 Section i. [Common schools.] — ^The legislature 
 shall provide for the maintenance and support of a S)rstem 
 
388 Constitutional History of New York. 
 
 of free common schools, wherein all the children of this 
 state may be educated. 
 
 [New.] 
 
 § 2. [University.] — The corporation created in the 
 year one thousand seven hundred and eighty-four, under 
 the name of The Regents of the University of the State 
 of New York, is hereby continued under the name of 
 The University of the State of New York. It shall be 
 governed, and its corporate powers, which may be in- 
 creased, modified, or diminished by the legislature, shall 
 be exercised, by not less than nine regents. 
 
 [New.] 
 
 § 3. [Education funds.] — The capital of the com- 
 mon-school fund, the capital of the literature fund, and 
 the capital of the United States deposit fund, shall be 
 respectively preserved inviolate. The revenue of the said 
 common-school fund shall be applied to the support of 
 common schools ; the revenue of the said literature fund 
 shall be applied to the support of academies; and the 
 sum of twenty-five thousand dollars of the revenues of 
 the United States deposit fund shall each year be ap- 
 propriated to and made part of the capital of the said 
 common-school fund. 
 
 [Const. 1821, art 7, § 10; 1846, art. 9, § I.] 
 
 § 4. [Sectarian aid prohibited.] — Neither the state 
 nor any subdivision thereof, shall use its property or 
 credit or any public money, or authorize or permit either 
 to be used, directly or indirectly, in aid or maintenance, 
 other than for examination or inspection, of any school 
 or institution of learning wholly or in part under the 
 
The Fourth Constitution, 1894. 389 
 
 control or direction of any religious denomination, or in 
 which any denominational tenet or doctrine is taught. 
 
 [New.] 
 
 ARTICLE X. 
 
 [Local Officers; General Provisioks.] 
 
 Section i. [Election and removal of certain county 
 officers.] — Sheriffs, clerks of counties, district at- 
 torneys, and registers in counties having registers, shall 
 be chosen by the electors of the respective counties, once 
 in every three years, and as often as vacancies shall 
 happen, Vexcept in the counties of New York and Kings, 
 and in counties whose boundaries are the same as those 
 of a city, where such officers shall be chosen by the elec- 
 tors once in every two or four years, as the legislature 
 shall direct.^ Sheriffs shall hold no other office and be 
 ineligible for the next term after the termination of their 
 offices. They may be required by law to renew their 
 security, from time to time; and in default of giving 
 such new security, their offices shall be deemed vacant. 
 But the county shall never be made responsible for the 
 acts of the sheriff. The governor may remove any officer, 
 in this section mentioned, within the term for which he 
 shall have been elected; giving to such officer a copy of 
 the charges against him, and an opportunity of being 
 heard in his defense. 
 
 [Const. 1777, arts. 26, 28; 1821, art. 4, § 8; 1846, art. 10, § i.] 
 
 § 2. [Local officers, how chosen.] — All county offi- 
 cers whose election or appointment is not provided for 
 by this Constitution shall be elected by the electors of 
 the respective counties or appointed by the boards of 
 supervisors, or other county authorities, as the legisla- 
 ture shall direct. All city, town, and village officers. 
 
390 Constitutional History of New York. 
 
 whose election or appointment is not provided for by 
 this Constitution, shall be elected by the electors of such 
 cities, towns, and villages, or of some division thereof, 
 or appointed by such authorities thereof, as the legisla- 
 ture shall designate for that purpose. All other officers, 
 whose election or appointment is not provided for by 
 this Constitution, and all officers whose offices may here- 
 after be created by law, shall be elected by the people, 
 or appointed, as the legislature may direct. 
 
 [Const. 1777, arts. 22, 29; 1821, art. 4, § 15; Am. 1826, relative to 
 election of justices of the peace; Am. 1833 and 1838, relative to 
 mayors; 1846, art. 10, § 2.] 
 
 § 3. [Duration of certain offices, how fixed.] — 
 
 When the duration of any office is not provided by this 
 Constitution it may be declared by law; and if not so 
 declared, such office shall be held during the pleasure of 
 the authority making the appointment. 
 
 [Const. 1777, art. 28; 1821, art. 4, § 16; 1846, art. 10, § 3.] 
 
 § 4. [Legislature to prescribe time of elections.] — 
 
 The time of electing all officers named in this article 
 shall be prescribed by law. 
 
 [Const. 1777, art. 29; 1821, art. I, § 15, art. 4, §§ 10, 15; Am. 1826 
 (justices of peace); Ams. 1833, 1838 (mayors); 1846, art. 10, § 4; 
 1894, art. 12, § 3.] 
 
 § 5. [Vacancies.] — The legislature shall provide for 
 filling vacancies in office, and in case of elective officers, 
 no person appointed to fill a vacancy shall hold his office 
 by virtue of such appointment longer than the com- 
 mencement of the political year next succeeding the first 
 annual election after the happening of the vacancy. 
 
 [Const. 1846, art. 10, § S ; also provisions in this Constitution rela- 
 tive to particnlar offices.] 
 
 § 6. [Political year.] — The political year and legis- 
 lative term shall begin on the first day of January ; and 
 
The Fourth Constitution, 1894. 391 
 
 the legislature shall, every year, assemble on the first 
 Wednesday in January. 
 
 [Const 1821, art. i, § 14; 1846, art. 10, § 6.] 
 
 § 7. [Removals.] — Provision shall be made by law 
 for the removal for misconduct or malversation in office 
 of all officers, except judicial, whose powers and duties 
 are not local or legislative, and who shall be elected at 
 general elections, and also for supplying vacancies created 
 by such removal. 
 
 [Const. 1846, art 10, § 7.] 
 
 § 8. [Legislature may determine vacancies.] — The 
 
 legislature may declare the cases in which any office shall 
 be deemed vacant when no provision is made for that 
 purpose in this Constitution. 
 
 [Const 1846, art ip, § 8.] 
 
 § 9. [Compensation.] — No officer whose salary is 
 fixed by the Constitution shall receive any additional 
 compensation. Each of the other state officers named 
 in the Constitution shall, during his continuance in office, 
 receive a compensation, to be fixed by law, which shall 
 not be increased or diminished during the term for which 
 he shall have been elected or appointed; nor shall he 
 receive to his use any fees or perquisites of office as other 
 compensation. 
 
 [Am. 1874.] 
 
 ARTICLE XL 
 [Militia.] 
 
 Section i. [Militia, how constituted.] — All able- 
 bodied male citizens between the ages of eighteen and 
 
392 Constitutional History of New York. 
 
 forty-five years, who are residents of the state, shall con- 
 stitute the militia, subject, however, to such exemptions 
 as are now, or may be hereafter, created by the laws of 
 the United States, or by the legislature of this state. 
 
 [Const. 1777, art. 24; 1821, art. 7, § S; 1846, art. 11, § i.] 
 
 § 2. [Active force, how enlarged.] — The legisla- 
 ture may provide for the enlistment into the active force 
 of such other persons as may make application to be so 
 enlisted. 
 
 [New.] 
 
 §3. [Organization and maintenance.] — The militia, 
 shall be organized and divided into such land and naval, 
 and active and reserve forces as the legislature may deem 
 proper, provided, however, that there shall be maintained 
 at all times a force of not less than ten thousand enlisted 
 men, fully uniformed, armed, equipped, disciplined, and 
 ready for active service. And it shall be the duty of the 
 legislature at each session to make sufficient appropria- 
 tions for the maintenance thereof. 
 
 [New.] 
 
 § 4. [Governor to appoint certain militia officers.] 
 — The governor shall appoint the chiefs of the several 
 staff departments, his aides-de-camp and military secre- 
 tary, all of whom shall hold office during his pleasure, 
 their commissions to expire with the term for which the 
 governor shall have been elected ; he shall also nominate, 
 and with the consent of the senate appoint, all major 
 generals. 
 
 [Const 1777, art. 24; 1821, art. 4, § 2; 1846, art. 11, § 3.] 
 
The Fourth Constitution, 1894. 393 
 
 § 5. [Other officers, how chosen.] — All other com- 
 missioned and noncommissioned officers shall be chosen 
 or appointed in such manner as the legislature may deem 
 most conducive to the improvement of the militia, pro- 
 vided, however, that no law shall be passed changing the 
 existing mode of election and appointment tmless two 
 thirds of the members present in each house shall concur 
 therein. 
 
 [Const. 1777, art. 24; 1821, art. 4, § 3; 1846, art^ 11, §§ 4, 6.] 
 
 § 6. [Removals.] — The commissioned officers shall 
 be commissioned by the governor as commander-in-chief. 
 No commissioned officer shall be removed from office 
 during the term for which he shall have been appointed 
 or elected, imless by the senate on the recommendation 
 of the governor, stating the grounds on which such 
 removal is recommended, or by the sentence of a court 
 martial, or upon the findings of an examining board 
 organized pursuant to law, or for absence without leave 
 for a period of six months or more. 
 
 [Const 1777, arts. 23, 24; 1821, art. 4. § 4! 1846, art. 11, § 5.] 
 
 ARTICLE XII. 
 [Cities and Villages.] 
 
 Section i. [Organization; restriction of powers.] — 
 It shall be the duty of the legislature to provide for 
 the organization of cities and incorporated villages, and 
 to restrict their power of taxation, assessment, borrow- 
 ing money, contracting debts, and loaning their credit, 
 so as to prevent abuses in assessments, and in contracting 
 debt by such municipal corporations. 
 
 [Const. 1846, artu 8, § 9.] See this section in vol. 4 for amend- 
 ment of 1905. 
 
394 Constitutional History of New York. 
 
 §2. [City laws; referendum.] — All cities are classi- 
 fied according to the latest state enumeration, as from 
 time to time made, as follows : The first class includes 
 all cities having ^a population of two hundred and fifty 
 thousand, or more; the second class, all cities having a 
 population of fifty thousand and less than two hundred 
 and fifty thousand ; the third class, all other cities. Laws 
 relating to the property, affairs, or government of cities, 
 and the several departments thereof, are divided into 
 general and special city laws ; general city laws are those 
 which relate to all the cities of one or more classes ; spe- 
 cial city laws are thqse which relate to a single city, or to 
 less than all the cities of a class. Special city laws shall 
 not be passed except in conformity with the provisions 
 of this section. After any bill for a special city law, re- 
 lating to a city, has been passed by both branches of 
 the legislature, the house in which it originated shall 
 immediately transmit a certified copy thereof to the mayor 
 of such city, and within fifteen days thereafter the mayor 
 shall return such bill to the house from which it was 
 sent, or, if the session of the legislature at which such 
 bill was passed has terminated, to the governor, with 
 the mayor's certificate thereon, stating whether the city 
 has or has not accepted the same. 
 
 In every city of the first class, the mayor, and in every 
 other city, the mayor and the legislative body thereof 
 concurrently, shall act for such city as to such bill; but 
 the legislature may provide for the concurrence of the 
 legislative body in cities of the first class. The legis- 
 lature shall provide for a public notice and opportunity 
 for a public hearing concerning any such bill in every 
 city to which it relates, before action thereon. Such a 
 bill, if it relates to more than one city, shall be trans- 
 mitted to the mayor of each city to which it relates, 
 and shall not be deemed accepted unless accepted as 
 
The Fourth Constitution, i8p4. 395 
 
 herein provided, by every such city. Whenever any 
 such bill is accepted as herein provided, it shall be sub- 
 ject, as are other bills, to the action of the governor. 
 Whenever, during the session at which it was. passed, 
 any such bill is returned withoiit the acceptance of 
 the city or cities to which it relates, or within such fifteen 
 days is not returned, it may nevertheless again be passed 
 by both branches of the legislature, and it shall then 
 be subject, as are other bills, to the action of the governor. 
 In every special city law which has been accepted by the 
 city or cities to which it relates, the title shall be followed 
 by the words "accepted by the city," or "cities," as the 
 case may be; in every such law which is passed without 
 such acceptance, by the words "passed without the ac- 
 ceptance of the city," or "cities," as the case may be. 
 
 [New.] 
 
 § 3. [City officers, when to be elected.] — All elec- 
 tions of city officers, including supervisors and judicial 
 officers of inferior local court's, elected in any city or 
 part of a city, and of county officers elected in the coun- 
 ties of New York and Kings, and in all counties whose 
 boundaries are the same as those of a city, except to 
 fill vacancies, shall be held on the Tuesday succeeding 
 the first Monday in November in an odd-numbered year, 
 and the term of every such officer shall expire at the 
 end of an odd-numbered year. The terms of office of 
 all such officers elected before the first day of January, 
 one thousand eight hundred and ninety-five, whose suc- 
 cessors have not then been elected, which, under existing 
 laws, would expire with an even-numbered year, or in 
 an odd-numbered year and before the end thereof, are 
 extended to and including the last day of December next 
 following the time when such terms would otherwise 
 expire ; the terms of office of all such officers which, under 
 
396 Constitutional History of New York. 
 
 existing laws, would expire in an even-numbered year, 
 and before the end thereof, are abridged so as to expire 
 at the end of the preceding year. This section shall not 
 apply to any city of the third class, or to elections of any 
 judicial officer, except judges and justices of inferior 
 local courts. 
 
 [New.] 
 
 ARTICLE XIII. 
 [Official Oath; Bribery; Passes.] 
 
 Section i. [Oath of ofl&ce.J — Members of the legis- 
 lature, and all officers, executive and judicial, except such 
 inferior officers as shall be by law exempted, shall, before 
 they enter on the duties of their respective offices, take 
 and subscribe the following oath or affirmation: "I do 
 solemnly swear (or affirm) that I will support the Con- 
 stitution of the United States, and the Constitution of 
 the state of New York, and that I will faithfully dis- 
 charge the duties of the office of , according 
 to the best of my ability;" and all such officers who 
 shall have been chosen at any election shall, before they 
 enter on the duties of their respective offices, take and 
 subscribe the oath or affirmation above prescribed, to- 
 gether with the following addition thereto, as part 
 thereof : 
 
 "And I do further solemnly swear (or affirm) that 
 I have not, directly or indirectly, paid, offered, or prom- 
 ised to pay, contributed, or offered or promised to con- 
 tribute, any money, or other valuable thing as a con- 
 sideration or reward for the giving or withholding a 
 vote at the election at which I was elected to said office, 
 and have not made any promise to influence the giving 
 or withholding any such vote," and no other oath, dec- 
 
The Fourth Constitution, 1894. 397 
 
 laration, or test shall be required as a qualification for 
 any office of public trust. 
 
 [Const. 1821, art. 6, § i ; 1846, art. 12, § i ; Am. 1874.] 
 
 § 2. [Bribery of public officers.] — Any person hold- 
 ing office under the laws of this state who, except in pay- 
 ment of his legal salary, fees, or perquisites, shall re- 
 ceive or consent to receive, directly or indirectly, anything 
 of value or of personal advantage, or the promise thereof, 
 for performing or omitting to perform any official act, 
 or with the express or implied understanding that his 
 official action or omission to act is to be in any degree 
 influenced thereby, shall be deemed guilty of a felony. 
 This section shall not affect the validity of any existing 
 statute in relation to the offense of bribery. 
 
 [Am. 1874, art. 15, § i.] 
 
 § 3. [Bribery, how punished.] — Any person who 
 shall offer or promise a bribe to an officer, if it shall 
 be received, shall be deemed guilty of a felony and liable 
 to punishment, except as herein provided. No person 
 offering a bribe shall, upon any prosecution of the officer 
 for receiving such bribe, be privileged from testifying 
 in relation thereto, and he shall not be liable to civil or 
 criminal prosecution therefor, if he shall testify to the 
 giving or offering of such bribe. Any person who shall 
 offer or promise a bribe, if it be rejected by the officer 
 to whom it was tendered, shall be deemed guilty of an 
 attempt to bribe, which is hereby declared to be a felony. 
 
 [Am. 1874, art. IS, § 2.] 
 
 § 4. [Witnesses.] — Aay person charged with re- 
 ceiving a bribe, or with offering or promising a bribe, 
 
398 Constitutional History of New York, 
 
 shaU be permitted to testify in his own behalf in any 
 civil or criminal prosecution therefor. 
 
 [Am. 1874, art. 15, § 3.] 
 
 § 5. [Passes.] — No public officer, or person elected 
 or appointed to a public office, under the laws of this 
 state, shall, directly or indirectly, ask, demand, accept, 
 receive, or consent to receive for his own use or benefit, 
 or for the use or benefit of another, any free pass, free 
 transportation, franking privilege or discrimination in 
 passenger, telegraph, or telephone rates, from any person 
 or corporation, or make use of the same himself or in 
 conjunction with another. A person who violates any 
 provision of this section shall be deemed guilty of a mis- 
 demeanor, and shall forfeit his office at the suit of the 
 attorney general. Any corporation, or officer or agent 
 thereof, who shall offer or promise to a public officer, 
 or person elected or appointed to a public office, any 
 such free pass, free transportation, franking privilege 
 or discrimination, shall also be deemed guilty of a mis- 
 demeanor and liable to punishment except as herein pro- 
 vided. No person or officer or agent of a corporation, 
 giving any such free pass, free transportation, franking 
 privilege or discrimination hereby pi^ohibited, shall be 
 privileged from testifying in relation thereto, and he shall 
 not be liable to civil or criminal prosecution therefor if 
 he shall testify to the giving of the same. 
 
 [New.] 
 
 § 6. [District attorney's duty; expenses.] — Any 
 
 district attorney who shall fail faithfully to prosecute a 
 person charged with the violation in his county of any 
 provision of this article, which may come to his knowl- 
 edge, shall be removed from office by the governor, after 
 
The Fourth Constitution, 1894. 399 
 
 due notice and an opportunity of being heard in his de- 
 fense. The expenses which shall be incurred by any 
 county in investigating and prosecuting any charge of 
 bribery or attempting to bribe any person holding office 
 under the laws of this state, within such county, or of 
 receiving bribes by any such person in said county, shall 
 be a charge against the state, and their payment by the 
 state shall be provided for by law. 
 
 [Am. 1874, art. 15, § 4.] 
 
 ARTICLE XIV. 
 [Amendments and Conventions.] 
 
 Section i. [Legislative amendments.] — Any 
 
 amendment or amendments to this Constitution may be 
 proposed in the senate and assembly; and if the same 
 shall be agreed to by a majority of the members elected 
 to each of the two houses, such proposed amendment or 
 amendments shall be entered on their journals, and the 
 yeas and nays taken thereon, and referred to the legis- 
 lature to be chosen at the next general election of sen- 
 ators, and shall be published for three months previous 
 to the time of making such choice ; and if in the legisla- 
 ture so next chosen, as aforesaid, such proposed amend- 
 ment or amendments shall be agreed to by a majority 
 of all the members elected to each house, then it shall 
 be the duty of the legislature to submit such proposed 
 amendment or amendments to the people for approval 
 in such manner and at such times as the legislature shall 
 prescribe; and if the people shall approve and ratify such 
 amendment or amendments by a majority of the electors 
 voting thereon, such amendment or amendments shall 
 become a part of the Constitution from and after the 
 first day of January next after such approval. 
 
 [Const. 1821, art. 8, § i; 1846, art. 13, § i.] 
 
400 Constitutional History of New York. 
 
 § 2. [Conventions.] — At the general election to be 
 held in the year one thousand nine hundred and sixteen, 
 and every twentieth year thereafter, and also at such 
 times as the legislature may by law provide, the ques- 
 tion, "Shall there be a convention to revise the Consti- 
 tution and amend the same?" shall be decided by the 
 electors of the state ; and in case a majority of the elec- 
 tors voting thereon shall decide in favor of a convention 
 for such purpose, the electors of every senate district 
 of the state, as then organized, shall elect three delegates 
 at the next ensuing general election at which members 
 of the assembly shall be chosen, and the electors of the 
 state voting at the same election shall elect fifteen dele- 
 gates-at-large. The delegates so elected shall convene at 
 the capitol on the first Tuesday of April next ensuing 
 after their election, and shall continue their session until 
 the business of such convention shall have been com- 
 pleted. Every delegate shall receive for his services the 
 same compensation and the same mileage as shall then 
 be annually payable to the members of the assembly. A 
 majority of the convention shall constitute a quorum 
 for the transaction of business, and no amendment to 
 the Constitution shall be submitted for approval to the 
 electors as hereinafter provided, unless by the assent of 
 a majority of all the delegates elected to the convention, 
 the yeas and nays being entered on the journal to be kept. 
 The convention shall have the power to appoint such offi- 
 cers, employees, and assistants as it may deem necessary, 
 and fix their compensation, and to provide for the printing 
 of its documents, journal, and proceedings. The conven- 
 tion shall determine the rules of its own proceedings, 
 choose its own officers, and be the judge of the election re- 
 turns and qualifications of its members. In case of a va- 
 cancy, by death, resignation, or other cause, of any district 
 delegate elected to the convention, such vacancy shall 
 
The Fourth Constitution, 1894. 4°^ 
 
 be filled by a vote of the remaining delegates represent- 
 ing the district in which such vacancy occurs. If such 
 vacancy occurs in the office of a delegate-at-large, such 
 vacancy shall be filled by a vote of the remaining dele- 
 gates-at-large. Any proposed constitution or constitu- 
 tional amendment which shall have been adopted by such 
 convention shall be submitted to a vote of the electors 
 of the state at the time and in the manner provided by 
 such convention, at an election which shall be held not 
 less than six weeks after the adjournment of such con- 
 vention. Upon the approval of such constitution or con- 
 stitutional amendments, in the manner provided in the 
 last preceding section, such constitution or constitutional 
 amendment shall go into effect on the first day of Jan- 
 uary next after such approval. 
 
 [Const. 1846, art. 13, § 2; Am. 1874, art. 16, § i.l 
 
 § 3. [Coincident legislative and convention amend- 
 ments.] — Any amendment proposed by a constitu- 
 tional convention relating to the same subject as an 
 amendment proposed by the legislature, coincidently sub- 
 mitted to the people for approval at the general election 
 held in the year one thousand eight hundred and ninety- 
 four, or at any subsequent election, shall, if approved, 
 be deemed to supersede the amendment so proposed by 
 the legislature. 
 
 [New.] 
 
 ARTICLE XV. 
 [When Constitution to Take Effect.] 
 
 Section i. [Time of taking effect.] — This Consti- 
 tution shall be in force from and including the first day 
 Vol. I. Const. Hist.— 26. 
 
402 Constitutional History of New York. 
 
 of January, one thousand eight hundred and ninety-five, 
 except as herein otherwise provided. 
 
 [New. Temporary.] 
 
 Done in convention at the Capitol in the city of 
 Albany, the twenty-ninth day of September, in 
 the year one thousand eight hundred and ninety- 
 four, and of the independence of the United States 
 of America the one hundred and nineteenth. 
 
 In witness whereof, we have hereunto sub- 
 scribed our names. 
 
 JOSEPH HODGES CHOATE, 
 
 President -and Delegate-at-Large. 
 
 Charles Elliott Fitch, 
 
 Secretary. 
 
Amendments from 1894 to 1904.. 403 
 
 AMENDMENTS FROM 1894 TO 1904. 
 
 1899. Art. 3, § 26. [Boards of supervisors.] — 
 There shall be in each county, except in a county wholly 
 included in a city, a board of supervisors, to be composed 
 of such members, and elected in such manner, and for 
 such period, as is or may be provided by law. In a city 
 which includes an entire county, or two or more entire 
 counties, the powers and duties of a board of supervisors 
 may be devolved upon the municipal assembly, common 
 council, board of aldermen, or other legislative body of 
 the city. 
 
 [Am. 1874; Const. 1894, art. 3, § 26.] 
 
 1899. Art. 6, § 2. [Appellate division.] — The 
 
 legislature shall divide the state into four judicial de- 
 partments. The first department shall consist of the 
 county of New York; the others shall be bounded by 
 county lines, and be compact and equal in population, 
 as nearly as may be. Once every ten years the legis- 
 lature may alter the judicial departments, but without 
 increasing the number thereof. There shall be an ap- 
 pellate division of the supreme court, consisting of seven 
 justices in the first department, and of five justices in 
 each of the other departments. In each department four 
 shall constitute a quorum, and the concurrence of three 
 shall be necessary to a decision. No more than five 
 justices shall sit in any case. From all the justices 
 elected to the supreme court the governor shall desig- 
 nate those who shall constitute the appellate division in 
 each department; and he shall designate the presiding 
 justice thereof, who shall act as such during his term of 
 office, and shall be a resident of the department. The 
 other justices shall be designated for terms of five years 
 
404 Constitutional History of New York. 
 
 or the unexpired portions of their respective terms of 
 office, if less than five years. From time to time, as the 
 terms of such designations expire, or vacancies occur, 
 he shall make new designations. A majority of the 
 justices so designated to sit in the appellate division 
 in each department shall be residents of the depart- 
 ment. He may also make temporary designations in 
 case of the absence or inability to act of any justice in 
 the appellate division, or in case the presiding justice of 
 any appellate division shall certify to him that one or 
 more additional justices are needed for the speedy dis- 
 position of the business before it. Whenever the appel- 
 late division in any department shall be unable to dispose 
 of its business within a reasonable time, a majority of 
 the presiding justices of the several departments, at a 
 meeting called by the presiding justice of the depart- 
 ment in arrears, may transfer any pending appeals from 
 such department to any other department, for hearing 
 and determination. No justice of the appellate division 
 shall exercise any of the powers of a justice of the 
 supreme court, other than those of a justice out of court, 
 and those pertaining to the appellate division or to the 
 hearing and decision of motions submitted by consent 
 of counsel. From and after the last day of December, 
 eighteen hundred and ninety-five, the appellate division 
 shall have the jurisdiction now exercised by the supreme 
 court at its general terms and by the general terms of the 
 court of common pleas for the city and county of New 
 York, the superior court of the city of New York, the 
 superior court of Buffalo and the city* of Brooklyn, and 
 such additional jurisdiction as may be conferred by the 
 legislature. It shall have power to appoint and remove 
 a reporter. The justices of the appellate division in each 
 department shall have power to fix the times and places 
 for holding special and trial terms therein, and to assign 
 
 *Word "court" evidently omitted. 
 
Amendments from i8p4 to 1904. 405 
 
 the justices in the departments to hold such terms; or 
 to make rules therefor. 
 
 [Const 1894 art 6, § 2. The amendment authorizes additional 
 judges in the appellate division.} See this section in vol. 4 for 
 amendment of 1905. 
 
 1899, Art. 6, § 7. [Court of appeals.] — The court 
 of appeals is continued. It shall consist of the chief 
 judge and associate judges now in office, who shall hold 
 their offices until the expiration of their respective terms, 
 and their successors, who shall be chosen by the electors 
 of the state. The official terms of the chief judge and 
 associate judges shall be fourteen years from and in- 
 cluding the first day of January next after their election. 
 Five members of the court shall form a quorum, and 
 the concurrence of four shall be necessary to a decision. 
 The court shall have power to appoint and to remove 
 its reporter, clerk, and attendants. Whenever and as 
 often as a majority of the judges of the court of appeals 
 shall certify to the governor that said court is unable, by 
 reason of the accumulation of causes pending therein, 
 to hear and dispose of the same with reasonable speed, 
 the governor shall designate not more than four justices 
 of the supreme court to serve as associate judges of the 
 court of appeals. The justices so designated shall be 
 relieved from their duties as justices of the supreme 
 court and shall serve as associate judges of the court of 
 appeals tmtil the causes undisposed of in said court are 
 reduced to two' hundred, when they shall return to the 
 supreme court. The governor may designate justices of 
 the supreme court to fill vacancies. No justice shall 
 serve as associate judge of the court of appeals except 
 while holding the office of justice of the supreme court, 
 and no more than seven judges shall sit in any case. 
 
 [Judiciary Article of 1869, § 2; Const 1894 art 6, § 7. The 
 amendment adds provisions for the relief of tiie court] 
 
4o6 Constitutional History of New York. 
 
 1899. Art. 8, § 10. [Counties, cities and towns not 
 to give or loan money or credit ; limitation of indebt- 
 edness.] — No county, city, town, or village shall 
 hereafter give any money or property, or loan its money 
 or credit to or in aid of any individual, association, or 
 corporation, or become directly or indirectly the owner 
 of stock in, or bonds of, any association or corporation ; 
 nor shall any such county, city, town, or village be al- 
 lowed to incur any indebtedness except for county, city, 
 town, or village purposes. This section shall not prevent 
 such county, city, town, or village from making such 
 provision for the aid or support of its poor as may be 
 authorized by law. No county or city shall be allowed 
 to become indebted for any purpose or in any manner 
 to an amount which, including existing indebtedness, shall 
 exceed ten per centum of the assessed valuation of the 
 real estate of such county or city subject to taxation, as 
 it appeared by the assessment-rolls of said county or city 
 on the last assessment for state or county taxes prior to 
 the incurring of such indebtedness; and all indebtedness 
 in excess of such limitation, except such as may now 
 exist, shall be absolutely void, except as herein otherwise 
 provided. No county or city whose present indebted- 
 ness exceeds ten per centum of the assessed valuation 
 of its real estate subject to taxation shall be allowed to 
 become indebted in any further amount until such in- 
 debtedness shall be reduced within such limit. This 
 section shall not be construed to prevent the issuing of 
 certificates of indebtedness or revenue bonds issued in 
 anticipation of the collection of taxes for amounts 
 actually contained, or to be contained, in the taxes for 
 the year when such certificates or revenue bonds are 
 issued and payable out of such taxes. Nor shall this 
 section be construed to prevent the issue of bonds to 
 provide for the supply of water; but the term of the 
 
Amendments from iSp^j. to 1904. 407 
 
 bonds issued to .provide the supply of water shall not 
 exceed twenty years, and a sinking fund shall be cre- 
 ated on the issuing of the said bonds for their redemp- 
 tion, by raising annually a sum which will produce an 
 amount equal to the sum of the principal and interest 
 of said bonds at their maturity. All certificates of in- 
 debtedness or revenue bonds issued in anticipation of 
 the collection of taxes, which are not retired within five 
 years after their date of issue, and bonds issued to 
 provide for the supply of water, and any debt hereafter 
 incurred by any portion or part of a city, if there shall 
 be any such debt, shall be included in ascertaining the 
 power of the city to become otherwise indebted. When- 
 ever the boundaries of any city are the same as those 
 of a county, or when any city shall include within its 
 boundaries more than one county, the power of any 
 county wholly included within such city to become in- 
 debted shall cease, but the debt of the county, heretofore 
 existing, shall not, for the purposes of this section, be 
 reckoned as a part of the city debt. The amount here- 
 after to be raised by tax for county or city purposes, in 
 any county containing a city of over one hundred thou- 
 sand inhabitants, or any such city of this state, in addi- 
 tion to pi'oviding for the principal and interest of exist- 
 ing debt, shall not in the aggregate exceed in any one 
 year two per centum of the assessed valuation of the 
 real and personal estate of such county or city, to be 
 ascertained as prescribed in this section in respect 
 to county or city debt. 
 
 [Am. 1874; Am. 1884; Const. 1894, art. 8, § 10. The amendment 
 relates to county indebtedness in the city of New York] See this 
 section in vol. 4 for amendment of 1905. 
 
 1901. Art. 3, § 18. [Private and local bills limited; 
 street railroads.] — The legislature shall not pass a 
 private or local bill in any of the following cases : 
 
4o8 Constitutional History of New York. 
 
 Changing the names of persons. 
 
 Lay out, opening, altering, working, or discontinuing 
 roads, highways, or alleys, or for draining swamps or 
 other low lands. 
 
 Locating or changing county seats. 
 
 Providing for changes of venue in civil or criminal 
 cases. 
 
 Incorporating villages. 
 
 Providing for election of members of boards of super- 
 visors. 
 
 Selecting, drawing, summoning, or impaneling grand 
 or petit jurors. 
 
 Regulating the rate of interest on money. 
 
 The opening and conducting of elections or desig- 
 nating places of voting. 
 
 Creating, increasing, or decreasing fees, percentage, or 
 allowances of public officers, during the term for which 
 said officers are elected or appointed. 
 
 Granting to any corporation, association, or individual 
 the right to lay down railroad tracks. 
 
 Granting to any private corporation, association, or 
 individual any exclusive privilege, immunity, or franchise 
 whatever. 
 
 Granting to any person, association, firm, or corpora- 
 tion, an exemption from taxation on real or personal 
 property. 
 
 Providing for building bridges, and chartering com- 
 panies for such purposes, except on the Hudson river 
 below Waterford, and on the East river, or over the 
 waters forming a part of the boundaries of the state. 
 
 The legislature shall pass general laws providing for 
 the cases enumerated in this section, and for all other 
 cases which, in its judgment, may be provided for by 
 general laws. But no law shall authorize the construc- 
 tion or operation of a street railroad except upon the 
 
Amendments from i8p4 to 1^04. 409 
 
 condition that the consent of the owners of one half in 
 value of the property bounded on, and the consent also 
 of the local" authorities having the control of, that por- 
 tion of a street or highway upon which it is proposed to 
 construct or operate such railroad be first obtained, or 
 in case the consent of such property owners cannot be 
 obtained, the appellate division of the supreme court, in 
 the department in which it is proposed to be constructed, 
 may, upon application, appoint three commissioners, who 
 shall determine, after a hearing of all parties interested, 
 whether such railroad ought to be constructed or oper- 
 ated, and their determination, confirmed by the court, may 
 be taken in lieu of the consent of the property owners. 
 
 [Am. 1874; Const. 1894, art. 3, § 18. The amendment of 1901 
 added the paragraph relating to special tax exemption laws.] 
 
CHAPTER I. 
 
 The Colonial Period. 
 
 The colonial history of New York has often been 
 written, and is easily accessible to the general reader. 
 Historians have considered it from various points of 
 view, and have apparently discovered all available sources 
 of information Which would aid in showing the incep- 
 tion, progress, and development of the colony. Unfor- 
 tunately many records covering this early period are lost. 
 De Witt Clinton fully appreciated the value of these 
 early records, and in 1814, then being vice president of 
 the New York Historical Society, — three years before 
 he became governor, — he prepared a memorial to the 
 legislature, stating the object of the society, its inability 
 to procure, unaided, the invaluable and ample materials 
 then accessible relating to our early history, and urging 
 the legislature to render suitable assistance to the society 
 in its efforts "to preserve the history of the state from 
 oblivion;" but the legislature did not respond to this 
 appeal. At that time the voluminous records of the 
 Dutch West India Company were in existence, and would 
 have been willingly presented to the state by the Dutch 
 government, but when, in 1841, the state undertook to 
 collect this information, it was found that the records 
 had been sold at auction in 1821 by order of the govern- 
 ment. We may conjecture how the keen historical in- 
 stinct of a Macaulay, a Motley, or an Irving would have 
 reveled in this mass of material, bringing from it a clear 
 statement of the affairs of this great corporation, and 
 
 [410] 
 
The Colonial Period. 411 
 
 incidentally the story of the early development of our 
 commonwealth. 
 
 Enough remains, however, to show the evolution of 
 the customs and principles w:hich found a place in our 
 first Constitution, and which became the b?^is of much 
 of the governmental machinery of the state. 
 
 A history of the colony of New York is not within the 
 scope of this work, but the following brief summary of 
 the more important events will doubtless be found useful 
 in tracing the development of our constitutional system. 
 
 1609, September 3. Captain Henry Hudson, an Eng- 
 lishman, in the Half Moon, a ship belonging to the Dutch 
 East India Company, and carrying the Dutch flag, first 
 entered New York bay. The next day he sailed up the 
 river which now bears his name. 
 
 i6to. Amsterdam merchants sent a shipload of 
 goods to be used in trading with the Manhattan Indians 
 for furs. 
 
 161 1. The trading enterprise of the Dutch was 
 greatly stimulated by the information acquired during 
 the voyage of the preceding year. 
 
 161 2. Residents of various cities in Holland applied 
 to the States General for information concerning the 
 new discoveries in America. 
 
 1613. Trading with the Indians continued. At this 
 time there were four houses on Manhattan Island. 
 
 1614. March 27. The States General of the United 
 Netherlands passed an ordinance authorizing the inhab- 
 itants of the United Netherlands to undertake the dis- 
 covery of new "courses, havens, countries, and places," 
 and giving to such discovei-ers the exclusive right to 
 make four voyages to the places so discovered. 
 
 1 614, October 11. Charter granted to several Am- 
 sterdam merchants and others, giving them the exclusive 
 right to trade with the newly discovered countries, which 
 
412 Constitutional History of New York. 
 
 then for the first time were called New Netherlands. 
 The cxsmpany was given the right to make four voyages 
 within three years from January i, 1615. This charter 
 expired by its own limitation January i, 1618. 
 
 16 19. Subscriptions were opened for stock in a new 
 corporation to be called the Dutch West India Company. 
 
 1620. The English government called the attention 
 of the States General to the patents which James I. 
 granted to the Plymouth and London companies, and to 
 its broad jurisdiction, claiming, in substance, that the 
 Dutch discoveries in America were within the jurisdic- 
 tion conferred on these companies. 
 
 1 62 1. June 3. A charter was granted to the Dutch 
 West India Company. This gigantic corporation was 
 invested with the most comprehensive administrative and 
 judicial powers. The central power of the corporation 
 was divided among five branches or Chambers represent- 
 ing the different cities in the Netherlands. 
 
 The Amsterdam Chamber was especially charged with 
 the administration of the company's affairs in New 
 Netherlands. The central power of the corporation was 
 vested in an Assembly of XIX., composed of delegates 
 from the several constituent cities. Among other things, 
 the company was authorized "to appoint and remove 
 governors, officers of justice, and other public officers, 
 for the preservation of the places, keeping good order, 
 police, and justice, in like manner for the promoting of 
 trade." All officers were required to take an oath of 
 allegiance to the company, and also to the States General. 
 
 1623. The Dutch West India Company began the 
 colonization of New Netherlands. The affairs of the 
 colony were under the supervision of Captain Cornelis 
 Jacobsen May, the first Director appointed by the Am- 
 sterdam Chamber. 
 
The Colonial Period. 413 
 
 1625. William Verhulst succeeded May as Director. 
 
 1626. Peter Minuit was appointed Director, and with 
 him was associated a Council of Five. The members of 
 the council were appointed by the Director, who, with 
 such council, possessed all executive, legislative, and 
 judicial powers, subject, however, to certain appellate 
 jurisdiction of the Assembly of XIX., which jurisdiction 
 was afterwards transferred to the Amsterdam Chamber. 
 The will of the company, as expressed in its instructions, 
 was to be the law of New Netherlands. Cases not pro- 
 vided for were to be governed by the Roman law, the 
 imperial statutes of Charles V., and the edicts, resolu- 
 tions, and customs of the Fatherland. 
 
 1629, June 7. Charter of Freedoms and Exemptions. 
 Persons who would undertake to plant colonies of fifty 
 souls were to be acknowledged as patroons, and given 
 the possession and enjoyment of all lands lying within 
 the limits of their settlements, "together with the fruits, 
 rights, minerals, rivers, and fountains thereof; as also 
 the chief command and lower jurisdiction, fishing, fowl- 
 ing, and grinding, to the exclusion of all others, to be 
 holden from the company as a perpetual inheritance, 
 without it ever devolving again to the company. . . . 
 And in case anyone should in time prosper so much as 
 to found one or more cities, he shall have power and 
 authority to establish officers and magistrates there, 
 and to make use of the title of his colony according to 
 his pleasure and to the quality of the persons." Each 
 colony was permitted to choose one deputy, "who shall 
 give information concerning his colony to the com- 
 mander and council." This charter is especially signifi- 
 cant in our history, for it transplanted to the colony the 
 feudal system, and established a policy of local adminis- 
 tration whose effects continued many years. 
 
414 Constitutional History of New York. 
 
 1638, August 30. An amended charter was proposed, 
 which modified in many respects the provisions of the 
 Charter of Freedoms and Exemptions of 1629. The 
 new charter contained the following provision concern- 
 ing religious worship : 
 
 "And, inasmuch as it is of the highest importance 
 that, in the first commencement and planting of the 
 population, proper order should be taken for public wor- 
 ship, according to the practice established by the govern-, 
 ment of this country, the same religion shall be taught 
 and preached there, according to the Confession and 
 Formularies of Unity here publicly accepted in the re- 
 spective churches, with which everyone shall be satisfied 
 and content; without, however, it being by this under- 
 stood that any person shall be hereby, in any wise, con- 
 strained or aggrieved in his conscience; but each shall 
 be free to live in peace and all decorum, provided he take 
 care not to frequent any forbidden assemblies or con- 
 venticles, much less collect or get up any such; and ab- 
 stain forthwith from all public scandals and offenses." 
 The charter guaranteed "equal justice" to all inhabitants 
 of the colony. 
 
 1638, March 28. William Kieft, the new Director, 
 arrived at Fort Amsterdam. He reorganized the ad- 
 ministration of the colony, but, for the purpose of re- 
 taining power, constituted a council of one member, 
 giving this member one vote, and retaining two votes 
 for himself. 
 
 1 64 1, August 28. This date marks the beginning of 
 representative government in the colony. The masters 
 and heads of families met at Fort Amsterdam, in re- 
 sponse to a summons from Director Kieft, to consider 
 what action ought to be taken towards the Indians in 
 consequence of the murder of Claes Smits by one of their 
 number. The Director wished to take severe measures 
 
Tke Colonial Period. 415 
 
 for the punishment of the Indians, but evidently was 
 unwilling to take the entire responsibility of any move- 
 ment for this purpose. He therefore sought the advice 
 of the masters and heads of families. The population 
 of Manhattan at this time was about 400. 
 
 At this meeting the assembly elected Twelve Select 
 Men as their representatives to consider the matters sub- 
 mitted by the Director. These Twelve Men constituted 
 the first representative body chosen in the colony, and 
 their names should be preserved in our constitutional 
 history. They were: Jacques Bentyn, Jan Dam, Hend- 
 rik Jansen, David Pietersen De Vries, Jacob Stoffels, 
 Maryn Adriaesen, Abram Molenaer, Fredrik Lubbertsen, 
 Joachim Pietersen, Gerrit Dircksen, George Papelje, and 
 Abram Plank. 
 
 They objected to the Director's propositions, and his 
 project was temporarily abandoned ; but he soon renewed 
 it, and after some delay obtained a reluctant consent to 
 make war on the Indians. 
 
 The Twelve Men used the opportunity presented by 
 their election to try to reform some abuses which had 
 become apparent in the administration of the colony, and 
 to secure for the people some share in the government. 
 They noted the reduction of the council to one member, 
 and the reservation of complete control by the Director, 
 and they demanded that the council should be increased 
 to five, and, to "save the land from oppression," four 
 persons elected by the commonalty should act as coun- 
 cilors; two of these four should annually be replaced by 
 two others to be chosen from the Twelve Men selected 
 by the people. They reminded the Director that in the 
 Fatherland each village had a Council of at least five 
 schepens, and' they demanded a continuance of these 
 features of local administration in the colony. 
 
 The Director admitted the justice of some of the com- 
 
4i6 Constitutional History of New York. 
 
 plaints presented by the Twelve Men, and promised to 
 reform the council. In his reply to their memorial he 
 took occasion to say that the Twelve Men had exceeded 
 their authority, because they were chosen to consider 
 only the question submitted by him relative to the course 
 to be pursued towards the Indians. 
 
 1642, February 18. Director Kieft, apparently 
 alarmed at the independent spirit manifested by the 
 Twelve Men, issued a proclamation forbidding any fur- 
 ther meetings without his authority, on the ground that 
 such meetings "tend to dangerous consequences and to 
 the great injury, both of the country, and of our au- 
 thority." 
 
 The new popular movement was thus checked for the 
 time, but the people were not discouraged. Another 
 opportunity came soon, for the troubles of the colony 
 compelled the Director to call on the people again. 
 
 1643, August. The Director again summoned the 
 people to meet in the fort for the purpose of considering 
 the affairs of the colony. He requested them to "elect 
 five or six persons from among themselves, who should 
 consider such propositions as the Director and council 
 should lay before them." 
 
 The people declined to elect these men, but expressed 
 their willingness to act on nominations made by the 
 Director and council, reserving the right to reject any 
 unsatisfactory nominations. 
 
 1643, September 13. The people chose a new repre- 
 sentative body composed of eight men, "maturely to 
 consider the propositions submitted to us here by the 
 Director and council," and approving any action they 
 might take in the premises. 
 
 1643, September 15. The Eight Men held their first 
 meeting. This body continued in existence about a year, 
 and made several attempts to consider various subjects 
 
The Colonial Period. 417 
 
 concerning colonial affairs. The Director submitted to 
 it various propositions affecting the administration, and 
 it exercised some legislative powers. 
 
 1647, May 27. Kieft having been recalled, Peter 
 Stuyvesant, "the last and most celebrated of the Dutch 
 Governors," arrived at New Amsterdam. 
 
 1647. Director Stuyvesant, acting on the advice of 
 the council, issued a proclamation to the people in the 
 several parts of the colony, requesting them to choose 
 eighteen men "from among the most honorable, reason- 
 able, honest, and respectable of the colonists." From 
 this number the Director and council were to select nine 
 men, "as is customary in the Fatherland." This was the 
 origin of the body known as the Nine Men. They were 
 to assist the Director and council in their deliberations, 
 "to the end of promoting the common welfare." 
 
 Stuyvesant called these men the "Tribunes of the 
 People." Three were chosen from the merchants, three 
 from the citizens, and three from the farmers. 
 
 1647, September 25. The Director General and coun- 
 cil issued a proclamation or charter, containing the names 
 of the Nine Men selected, and prescribing their duties. 
 
 The charter provided that the Nine Men, "as good and 
 faithful interlocutors and trustees of the commonalty, 
 shall endeavor to exert themselves to promote the honor 
 of God, and the welfare of our dear Fatherland, to the 
 best advantage of the company, and the prosperity of 
 our good citizens: to the preservation of the pure Re- 
 formed Religion as it here, and in the Churches of the 
 Netherlands, is inculcated." 
 
 Three of the number in regular rotation were to be 
 admitted to the council and form a part of the court in 
 civil causes. 
 
 The share in government which the people obtained 
 by way of the Nine Men was very limited ; but the crea- 
 
 VoL. I. Const. Hist.-^. 
 
4i8 Constitutional History of New York. 
 
 tion of the body was at least a concession to the people, 
 and even the meager powers and jurisdiction conferred 
 on this body marked an advance toward constitutional 
 government by the people, which was sure to come. 
 
 By the charter the people themselves had no voice in 
 selecting persons to fill vacancies, nor in the election of 
 new members. This power was practically reserved to 
 the Director General. After a few years, it seems that 
 he neglected to fill vacancies, and in this manner suffered 
 this representative body to become extinct. I have not 
 been able to find any record of it after 1652. 
 
 1652, April 4. The Amsterdam Chamber made an 
 order providing for the establishment of a municipal 
 government in New Amsterdam, and recommended the 
 election of one schout, two burgomasters, and five 
 schepens. 
 
 1653, February 2. Director General Stuyvesant, in 
 accordance with the order of the Amsterdam Chamber, 
 established a city government in New Amsterdam. The 
 Director, instead of permitting an election of the first 
 city officers, appointed the burgomasters and schepens, 
 and delegated the company's provincial schout to act also 
 for the city. The new city, at the time of its incorpora- 
 tion, had a population of about 800, which in 1656 had 
 increased to 1,000. 
 
 1653, November 25. In consequence of the troubles 
 existing in the colony, two delegates from each of the 
 towns of Flushing, Hempstede, Middleburgh, and 
 Gravesend met at the City Hall to consider the condition 
 of the colony, and devise some means of suppressing the 
 existing disorders. Two representatives of the Director 
 and council also appeared at this meeting, but the dele- 
 gates from Long Island objected to their presence, and 
 refused to sit with them. 
 
 Dr. O'Callagahan in his "History of New Nether- 
 
The Colonial Period. 419 
 
 lands," volume 2, beginning at page 239, gives a very 
 interesting account of this meeting, and the discussion 
 connected with and resulting from it. From this ac- 
 count it appears that the English delegates from Long 
 Island threatened to form a union among themselves for 
 mutual protection, if the Director could not properly 
 govern the colony. These delegates, in conference 
 among themselves and with their Dutch neighbors in 
 New Amsterdam, determined to call a general convention 
 of delegates from all parts of the colony to meet on the 
 loth of December following. It seems that the Director 
 objected to this meeting, but the delegates and others, 
 with characteristic independence, said that they should 
 meet on the day appointed, and "he might prevent it if 
 he could." 
 
 On the 3d of December Director Stuyvesant took 
 occasion to comment on the previous proceedings, among 
 other things saying that the refusal of the delegates to 
 associate with the representatives of the Director and 
 council "smelt of rebellion." He also intimated that 
 assemblies such as that held and the one proposed were 
 "pregnant with evil." 
 
 The Director, however, consented to a meeting on the 
 day appointed, to be held "under the direction of two 
 members of the council, to agree on a remonstrance to 
 the patroons on the actual condition of the country." 
 
 The delegates were chosen from the towns already 
 named, and also from Breukelen, Amersfoort, Midwout, 
 and Newtown. 
 
 1653, December 10. This convention was in many 
 respects the most important yet held in the history of 
 the colony. It asserted principles that were destined to 
 grow and ultimately to find a place in the established 
 policy of the colony and of the state. 
 
 The convention adopted a formal remonstrance to the 
 
420 Constitutional History of New York. 
 
 Director and council and States General, setting forth 
 the condition of the colony and the grievances of the 
 colonists, and praying for immediate relief. The re- 
 monstrance was written by George Baxter, an English- 
 man, formerly secretary to the Director. 
 
 The remonstrance objected to "arbitrary government ;" 
 it denied the right of one or more men to arrogate to 
 themselves "the exclusive power to dispose, at will, of 
 the life and property of any individual;" it asserted the 
 principle that "our consent, or that of our representatives, 
 is necessarily required in the enactment of laws and 
 orders" affecting the lives and property of the people. 
 
 The remonstrance also asserted that several officers 
 were "acting without the consent or nomination of the 
 people." Several other grievances were stated, but they 
 do not concern us here. 
 
 The remonstrance was presented to the Director, who 
 replied to it at length. He claimed, among other things, 
 that the towns of Midwout, Breukelen, and Amersfoort 
 "had no jurisdiction, and therefore were not entitled to 
 send delegates," and that the meeting of the other dele- 
 gates was illegal. He said that the Englishmen in the 
 colony "actually enjoyed greater privileges than the New 
 Netherland exemptions allow to any Dutchman." He 
 said, further, "that in all affairs in which the country at 
 large was interested the general ordinances have always 
 been sanctioned by the qualified members of the whole 
 province." 
 
 Concerning the choice of magistrates, the Director 
 said that "the magistrates of New Amsterdam are pro- 
 posed to the commonalty in front of the City Hall, by 
 their names and surnames, each in his quality, before they 
 are admitted or sworn into office. The question is then 
 put, Does anyone object?" The names of militia officers 
 are also submitted to their company before election. 
 
The Colonial Period. 421 
 
 In reply the members of the convention vindicated the 
 legality of the meeting "by appealing to the law of 
 Nature, which authorizes all men to associate and con- 
 vene together to protect their liberties and property." 
 
 The controversy did not end here, but was continued 
 with special reference to matters of administrative detail 
 and the general affairs of the colony, without involving 
 the rights claimed by the people and denied by Stuyve- 
 sant. It was clear that the agitation resulting in this 
 convention, and the remonstrance submitted by it, with 
 the reply of the Director General, could not fail to 
 strengthen the movement for representative government ; 
 and the sequel shows that, while the people gained little 
 directly fi-om this popular movement, they gained in- 
 directly by the propagation of the doctrine of popular 
 rights, and the discussion of the principles on which true 
 government ought to be founded. 
 
 1664, April 10. Another convention was held at the 
 City Hall in New Amsterdam, composed of representa- 
 tives from twelve towns. It was convoked by the Director 
 and council on the recommendation of the burgomasters 
 and schepens, and its object was to consider the "unhappy 
 situation of affairs and the menaces of the hostile In- 
 dians;" but, on account of the imminent danger of an 
 attack by the English, the convention confined its atten- 
 tion principally to devising means for resisting the enemy. 
 
 1664, August 27, O. S. New Amsterdam surrendered 
 to the English, and soon afterwards the name was 
 changed to New York. The Articles of Capitulation 
 contain some provisions that are pertinent to our subject. 
 These provisions relate especially to personal rights, 
 magistrates, freedom of conscience, quartering soldiers, 
 and popular representation. 
 
 Article III. "All people shall still continue free deni- 
 zens, and shall enjoy their lands, houses, goods, whereso- 
 
422 Constitutional History of New York. 
 
 ever they are within this country, and dispose of them as 
 they please." 
 
 IV. "If any inhabitant have a mind to remove him- 
 self, he shall liave a year and six weeks from this day to 
 remove himself, wife, children, servants, goods, and to 
 dispose of his lands here." 
 
 VIII. "The Dutch here shall enjoy the liberty of their 
 consciences in divine worship and church discipline." 
 
 X. "That the townsmen of the Manhattans shall not 
 have any soldiers quartered upon them without being 
 satisfied and paid for them by their officers, and that at 
 this present, if the fort be not capable of lodging all the 
 soldiers, then the burgomasters, by their officers, shall 
 appoint some houses capable to receive them." 
 
 XVI. "All inferior civil officers and magistrates shall 
 continue as now they are (if they please) till the custom- 
 ary time of new elections, and then new ones to be chosen 
 by themselves, provided that such new chosen magistrates 
 shall take the oath of allegiance to His Majesty of Eng- 
 land, before they enter upon their office." 
 
 XXI. "That the town of Manhattans shall choose 
 deputies, and those deputies shall have free voices in all 
 publick affairs, as much as any other deputies." 
 
 1664, March 12. A patent was granted to James, 
 Duke of York, embracing, with other territory. Long 
 Island, Manhattan Island, and New Jersey. The char- 
 acter of the tenure is described as that "of our mannor 
 of East Greenwich, in our county of Kent, in free and 
 common soccage, and not in capite nor by knight service." 
 
 The Duke was also authorized to appoint and discharge 
 governors, and other officers for the administration of 
 provincial affairs, and also "to make, ordain, and estab- 
 lish all manner of orders, forms, and ceremonies of gov- 
 ernment and magistracy fit and necessary for and con- 
 cerning the government of the territories and islands 
 
The Colonial Period. 423 
 
 aforesaid," which, however, must be conformable to the 
 law of England. 
 
 The Duke was vested with full governmental powers, 
 but there was no provision establishing civil liberty of 
 the people. Thus was inaugurated for New York a 
 system of proprietary government which continued many 
 years. 
 
 1665, February 28. The Hempstede convention. In 
 response to a popular demand, Governor Nicolls called 
 a convention of delegates to be chosen by the towns of 
 Long Island and Westchester. New York and other 
 parts of the province were omitted from this call, and 
 were not represented in the convention. 
 
 The delegates, when assembled, were to give the gov- 
 ernor "their advice and information in the settlement of 
 good and known laws within this government." This 
 convention was not vested with any legislative power, 
 and was given authority only to ratify the orders of the 
 Governor. It prepared an address to the Duke of York, 
 which was so servile in its tone as to excite the wrath of 
 the people, who even threatened personal violence against 
 the delegates. 
 
 The principal work of this convention was the promul- 
 gation of the code known as the "Duke's Laws," — a 
 body of law compiled by Lord Chancellor Clarendon, 
 principally from the laws and ordinances in force in other 
 English colonies, with some new matter. There is little 
 in this code which affects the development of constitu- 
 tional government; but a few of its provisions are im- 
 portant. 
 
 On the subject of religious toleration it provided that 
 "Sundays are not to be prophaned by Travellers, Labour- 
 ers, or vicious Persons," and that "no congregations shall 
 be disturbed in their private meetings in the time of 
 prayer, preaching, or other divine service; nor shall any 
 
424 Constitutional History of New York. 
 
 person be molested, fined, or Imprisoned for differing in 
 Judgment in matters of Religion, who profess Chris- 
 tianity." 
 
 Popular government was limited to the election of 
 eight overseers in each town, who were required to be 
 "men of good fame and life, chosen by the plurality of 
 voices of the freeholders in each town." Four overseers 
 were to be elected each year. 
 
 The code also contained the following provision for 
 local suffrage: "All votes in the private affaires of 
 Particular Townes shall be given and Determined by the 
 Inhabitants, freeholders, householders, and in matters 
 committed to Arbitration, or att session, either as to 
 Jureys in all cases or to Justices on the Bench, where the 
 law is not cleare shall bee carried by the Major part of 
 the Suffrages, The minor to be concluded by the vote 
 of the Major." 
 
 It will be noted that the Duke's Laws relate principally 
 to administrative detail, and contain very few provisions 
 relating to the principles of government or popular rights. 
 Some of these will be considered in subsequent chapters. 
 
 1665, June 12. Under the Articles of Capitulation the 
 municipal government of New York had continued as 
 it existed prior to the surrender. Governor Nicolls on 
 this date issued a proclamation changing the local gov- 
 ernment, and instituting the offices of mayor, alderman, 
 and sheriff, to take the place of those of schout, burgo- 
 master, and schepen. He appointed five aldermen, three 
 of whom, writh the mayor, were authorized to administer 
 the affairs of the city. They were given authority to 
 apply the Duke's Laws, and also all "such peculiar laws 
 as are or shall be thought convenient or necessary." 
 
 1669, November 9. A petition was presented to the 
 court of assizes, signed by representatives of the principal 
 towns, stating, in substance, that "at the surrender of 
 
The Colonial Period. 425 
 
 the province they had been promised all the privileges of 
 His Majesty's other English subjects in America; and 
 they contended that participation in legislation viras one 
 of those privileges." This petition was not well received. 
 The court referred it to the Governor, who considered it 
 a seditious document, and ordered it burned by the public 
 hangman. 
 
 1 67 1. Governor Lovelace had a council of eight 
 members, including the mayor and secretary of the prov- 
 ince. Here was an opportunity for reasonable popular 
 representation, and a means by which the people could 
 bring their views to the attention of the Governor; but 
 it is doubtful whether even this large council had much 
 influence in actual administration. 
 
 1673, August 9. New York was retaken by the Dutch. 
 
 1674, February 19. Treaty of Westminster, by which 
 New York was retransferred to the English. The trans- 
 fer was directly to the English King, which doubtless 
 had the effect to extinguish the title granted to the Duke 
 of York, in 1664. 
 
 1674, June 29. Second patent to the Duke of York. 
 It is substantially a repetition of the patent of 1664. 
 
 1674, November 10. Possession and sovereignty of 
 New York were formally transferred by Anthony Colve, 
 the Dutch governor, to Sir Edmund Andros, the new 
 governor appointed by the Duke of York. Thus ended 
 the Dutch dynasty in New York. 
 
 1675, April 6. The powers of government vested in 
 the Duke of York, in both patents, were practically abso- 
 lute, and in marked contrast with the policy adopted 
 toward other colonies. 
 
 The people, cherishing the privileges that they had 
 enjoyed in the Fatherland, both in the Netherlands and 
 in England, and also because of the superior advantages 
 which had been conferred on their neighbors, were dis- 
 
426 Constitutional History of New York. 
 
 contented under the Andros government, and strenuously- 
 objected to the arbitrary power which he sought to en- 
 force. Several early conventions have already been 
 noted, and, while these conventions had failed to produce 
 any substantial power, so far as actual participation in 
 the government was concerned, they were not without 
 fruit in the creation of an independent spirit, and a desire 
 for a share in the administration of colonial affairs. The 
 doctrine of "no taxation without representation" was 
 already firmly established in the Netherlands, and the 
 colonists considered this right a heritage which they were 
 entitled to enjoy in their new home. 
 
 As the population of the province increased, and its 
 business and political interests were enlarged, the agita- 
 tion for representative government grew apace, and fre- 
 quent attempts were made to secure this right. Governor 
 Andros vigorously opposed all such attempts, treating 
 them as seditious. 
 
 The demands for an assembly were communicated to 
 the Duke, who also resisted them, and on this date (April 
 6) said: 
 
 "Touching Generall Assemblyes which the people 
 there seem desirous of in irriitacon of their neighbour 
 colonies, I thinke you have done well to discourage any 
 mocon of that kind, both as being not at all comprehend- 
 ed in your instructions nor indeed consistent with your 
 forme of government already established, nor necessary 
 for the ease or redresse of any grievance that may happen, 
 since that may be as easily obtained, by any peticon or 
 other address to you at their General Assizes (Which is 
 once a year) where the same persons (as Justices) are 
 usually present, who in all probability would be their 
 Representatives if another constitution were allowed." 
 
 1676, January 28. The Duke, in another letter to 
 
The Colonial Period. 427 
 
 Governor Andros, commenting on the subject of popular 
 assemblies, said : 
 
 "I have formally writt to you touching assemblies in 
 those countries and have since observed what several of 
 your lattest letters hint about that matter. But unless 
 you had offered what qualifications are usual and proper 
 to such assemblies, I cannot but suspect they would be 
 of dangerous consequence, nothing being more known 
 than the aptness of such bodies to assume to themselves 
 many privileges which prove destructive to, or very oft 
 disturb, the peace of the government wherein they are 
 allowed. Neither do I see any use of them which is not 
 as well provided for, whilest you and your council govern 
 according to the laws established (thereby preserving 
 every man's property inviolate) and whilest all things 
 that need redress may be sure of finding it either at the 
 Quarter Sessions or by other legal and ordinary ways, 
 or lastly by appeal to myself. But howsoever, if you con- 
 tinue of the same opinion, I shall be ready to consider of 
 any proposals you shall send to that purpose." 
 
 This shows an inclination on the part of the Duke to 
 relax his opinions concerning popular assemblies. He 
 was at least willing to listen to any proposal on the sub- 
 ject. 
 
 1 68 1, January 11. Governor Andros sailed for Eng- 
 land in response to a request from the Duke of York, for 
 the pui-pose of conferring with the Duke on the affairs of 
 the colony. His departure was somewhat hasty, and he 
 neglected to make a formal order continuing the customs 
 duties. The New York merchants, taking advantage of 
 this oversight, refused to pay duties on imports. William 
 Dyer, the collector, attempted to collect the duties, ap- 
 parently relying on the general provision in the instruc- 
 tions left by the Governor. The people, availing them- 
 selves of the absence of the Governor, assumed more 
 
428 Constitutional History of New York. 
 
 liberty of conduct and of speech than they had been ac- 
 customed to exercise. Dyer was charged with high 
 treason, and was indicted by the grand jury for "traitor- 
 ously exercising regal power and authority over the 
 King's subjects contrary to Magna Charta, the Petition 
 of Right, and the Statutes of England." He was put on 
 trial, but, on his questioning the authority of the court, 
 the court decided to send him to England, to be proceeded 
 against there according to the King's direction. This 
 proceeding against Dyer, based on the Governor's omis- 
 sion to continue the customs duties, had a most signifi- 
 cant political effect. It provoked great agitation in the 
 colony, with much freedom of discussion of the discord 
 and the unsettled condition which had resulted from 
 Andros's administration, and led to a petition for an 
 assembly. 
 
 The grand jury that indicted Dyer presented to t^ie 
 court of assizes the want of an assembly as a grievance 
 against the government. A petition to the Duke of York 
 was thereupon prepared, praying for an assembly as a 
 constituent part of the colonial government. 
 
 1 68 1, June 29. The petition to the Duke of York 
 was prepared by the council of the province, the aldermen 
 of, New York, and the justices assembled at a special 
 court of assizes held at the city of New York. The 
 petitioners, after referring to the "great pressure and 
 lamentable condition" of the colonists, and reciting that 
 "the only remedy and ease of those burdens is that an 
 assembly of the people may be established by free choice 
 of the freeholders and inhabitants," say that "for many 
 years past they have groaned under inexpressible burdens 
 by having an arbitrary and absolute power used and 
 exercised over them, by which a yearly revenue is exacted 
 from us against our wills, and trade grievously burdened 
 with undue and unusual customs imposed on the mer- 
 
The Colonial Period. 429 
 
 chandise without our consent, our liberty and freedom 
 inthraled, and the inhabitants wholly shut out and de- 
 prived of any share, vote, or interest in the government, 
 to their great discouragement, and contrary to the laws, 
 rights, liberties, and privileges of the subject; so that we 
 are esteemed as nothing, and have become a reproach to 
 the neighbors in other his Majesty's colonies, who flour- 
 ish under the fruition and protection of his Majesty's 
 unparalleled form and method of government in his 
 realm of England, the undoubted birthright of all his 
 subjects." 
 
 The petitioners then prayed that "for the redress and 
 removal of the said grievances, the government of this 
 your colony may for the future be settled and established, 
 ruled, and governed by a governor, council, and assembly ; 
 which assembly to be duly elected and chosen by the free- 
 holders of this Your Royal Highness' colony. . . . 
 Which will give great ease and satisfaction to all His 
 Majesty's subjects in this colony." 
 
 1682, September 30. Thomas Dongan appointed gov- 
 ernor in New York. 
 
 1683, January 27. Instructions were issued to Gov- 
 ernor Dongan concerning his administration. 
 
 These instructions mark the dawn of a new era in the 
 colony. After forty-two years of agitation and struggle 
 for representative government since Director Kieft asked 
 the advice of the people in the Smits case, and after many 
 baitings, fluctuations, and defeats, the people of the colony 
 had won their cause ; and the Duke, evidently deeming it 
 futile longer to resist the progress of reform in his colony, 
 yielded to the popular demand, and directed the new 
 Governor to call an assembly of the people. 
 
 Governor Dongan, by these instructions, was directed, 
 with the advice of the council, in the name of the Duke, 
 to issue writs for the election of a general assembly, and 
 
430 Constitutional History of New York, 
 
 to state in such writs that the Duke "had thought fit that 
 there shall be a general assembly of the freeholders by 
 the persons who they shall choose to represent them in 
 order to consulting with themselves and the said council 
 what laws are fit and necessary to be made and estab- 
 lished for the good weal and government of the said 
 colony and its dependencies and of all the inhabitants 
 thereof." The writs were to be issued at least thirty days 
 before the time fixed for the meeting, which was to be 
 in New York. 
 
 The Duke, by these instructions, also directed the Gov- 
 ernor to inform the assembly at its first meeting that "for 
 the future it is my resolution that the said general as- 
 sembly shall have free liberty to consult and debate among 
 themselves all matters as shall be apprehended proper to 
 be established for laws for the good government of the 
 said colony of New York and its dependencies." 
 
 This grant conferred ample power on the assembly, 
 and vested it with full legislative authority, subject to a 
 veto by the Governor and the Duke. The Duke also 
 promised by the instnictions : "If such laws shall be' pro- 
 pounded as shall appear to me to be for the manifest good 
 of the country in general, and not prejudicial to me, I 
 will assent unto and confirm them." 
 
 The instructions also gave to the Governor an absolute 
 veto, for each law must have received his approval before 
 being transmitted to the Duke for his confirmation. This 
 made a double veto on the laws passed by the general 
 assembly, and the assembly had no power to pass a bill 
 over the veto. In this respect the assembly differed widely 
 from the modern legislature, which, under the Constitu- 
 tion, has the absolute power of legislation, even against 
 an executive veto, if two thirds of the members of each 
 house favor the passage of the law. By these instruc- 
 tions the assembly had full power to pass such laws as it 
 
The Colonial Period. 431 
 
 deemed best, but the laws, to be effectual, must have been 
 approved by the Governor and also by the Duke. 
 
 The instructions contained the further provision that 
 a law passed by the assembly and approved by the Gov- 
 ernor should be "good and binding" until the Duke 
 should notify the Governor of his disapproval, after which 
 time such laws "shall cease and be null and void to all 
 intents." 
 
 The instructions also gave the Governor power to 
 adjourn and dissolve an assembly and call a new one at 
 any time. 
 
 The instructions contained provisions relative to rev- 
 enue bills, the time a law should be in force, and the 
 tenure of office, but without involving any question of 
 principle now under consideration, and also the following 
 important provision, which states, in substance, the rights 
 conferred by the famous 39th Article of Magna Charta : 
 
 "And I doe hereby require and command you that noe 
 mans life, member, freehold, or goods, be taken away or 
 harmed in any of the places under your government but 
 by established and knowne laws not repugnant to, but as 
 nigh as may be agreeable to, the laws of the Kingdome 
 of England." 
 
 The importance of these instructions in the develop- 
 ment of our constitutional history can scarcely be over- 
 estimated. The seeds of liberty had been planted in the 
 colony long before the Duke oiF York became its owner, 
 and it was inevitable that an absolute personal govern- 
 ment must soon come to an end in a colony composed of 
 such heterogeneous people, and working out a new 
 destiny on the free soil, and breathing the free air of a 
 new world. It was a place and a time eminently con- 
 genial to the development of free institutions, and the 
 Duke could not hope to keep in subjection, either to his 
 own will or the will of any governor, the political opin- 
 
432 Constitutional History of New York. 
 
 ions, conduct, and personal rights of the people in a 
 colony with a population that already numbered 15,000, 
 and was rapidly increasing in political and commercial 
 importance. 
 
 A proprietary government could not long be main- 
 " tained in a colony with such a history and with such a 
 future, and against the popular unrest necessarily pro- 
 duced by the form of the existing government and its 
 method of administration, and also by the fact that its 
 neighbors enjoyed the right of representative government. 
 1683, October 17. The first general assembly. — 
 Seventeen of the eighteen delegates chosen under the 
 governor's writ assembled at Fort James in the city of 
 New York and organized the first assembly in accordance 
 with the instructions issued by the Duke of York. It is 
 greatly to be regretted that the journals of this assembly 
 are lost. I have not been able to ascertain the names of 
 all the delegates; their names are gone, and while we 
 cannot accord to them here the fame they deserve by 
 preserving their names in our history, their work, never- 
 theless, remains and will endure. From the laws passed 
 by this assembly we learn that Mathias Nicolls was 
 speaker, and John Spragge, who was also a member of 
 the council, was clerk. The governor's council was a 
 constituent part of the legislature, sustaining the relation 
 to that body which the senate sustains to the modern 
 legislature. The following were members of the council 
 at this time: Anthony Brockholls, Frederick Flypsen, 
 Stephen Van Courtland, Lucas Santen, John Spragge, 
 and John Youngs. 
 
 It is said that the majority of the delegates to the 
 assembly were Dutchmen, but both Dutch and English 
 had long been .familiar with the principles of popular 
 government. It is a noteworthy fact that the great prin- 
 ciples enunciated in the Charter of Liberties are drawn 
 
The Colonial Period. 433 
 
 from the immortal Magna Charta, which had for nearly 
 five centuries been the source and strength of English 
 free institutions ; yet these Dutchmen, no less zealous for 
 liberty than their English neighbors, were willing to 
 accept, adopt, and assert as their own, the rights of citi- 
 zens as defined by the Great Charter. 
 
 The first assembly was not slow to appreciate its op- 
 portunity. The new legislature was a colonial parliament, 
 differing from its great original in name and somewhat 
 in organization; but it asserted and exercised the same 
 general powers which had so long been possessed by its 
 English prototype. It should not be forgotten as an item 
 in our constitutional history that the first act of the first 
 legislature was a charter intended to declare the principles 
 that ought to be applied in the government of the colony, 
 and these principles were to be applied to a proprietary 
 government the same as in a royal province. The Duke 
 of York was recognized as the proprietor, but his govern- 
 ment was to be subject to the laws with which English- 
 men had long been familiar. This charter, closely 
 resembling our modern constitutions in form and sub- 
 stance, and containing many provisions which have been 
 continued in those instruments, might properly be called 
 the original constitution of New York. It established 
 free parliamentary government in the colony a century 
 before the independence of the new nation was acknowl- 
 edged by England. This instrument is entitled "The 
 Charter of Libertyes and priviledges granted by his 
 Royall Highnesse to the Inhabitants of New Yorke and 
 its dependencyes." 
 
 The assurances contained in the instructions to Gov- 
 ernor Dongan led the assembly confidently to expect the 
 approval of this law by the Duke, and if it had received 
 his final confirmation it would have become the general 
 charter of the colony as a result of the joint action of 
 Vol. I. Const. Hist.— 28. 
 
434 Constitutional History of New York. 
 
 the Duke, the Governor, the council, and the assembly, 
 thus combining and representing all the departments of 
 government under the new policy. 
 
 This charter was passed by the assembly on the 
 30th of October, 1683. This day must forever remain 
 one of the golden days in the history of New York. It 
 marked a new departure in constitutional government, 
 and it deserves to rank with that other famous day, almost 
 a century later, when on April 20, 1777, the colony be- 
 came a state, and adopted a new charter of liberties and 
 privileges which we call the Constitution. The Charter 
 of Liberties appears in full in another part of this work. 
 
 This charter and fourteen other laws passed by the 
 assembly were formally published in front of the City 
 Hall on the 7th of November, and were carried by Cap- 
 tain Mark Talbot to England for the Duke's confirmation. 
 The Duke actually signed the charter October 4, 1684, 
 but, while it was awaiting some technical formality, 
 Charles II., on the 6th of February, 1685, died, and the 
 Duke thereupon became King James II. of England. His 
 accession to the throne changed his point of view, and he 
 then concluded that the charter was too broad. His title 
 of proprietor had become merged in his higher title as 
 King. The experience of his immediate predecessors 
 evidently led him to the conclusion that a colonial legis- 
 lature, like the English Parliament, would be an incon- 
 venient adjunct of government, and might interfere with 
 the exercise of the royal prerogative. 
 
 Besides, the charter was drawn with reference to the 
 proprietorship of the Duke of York, and acknowledged 
 his authority as such proprietor. By becoming King he 
 had ceased to be proprietor, and the charter was therefore 
 inaccurate in form. This of itself was deemed a sufficient 
 objection to its approval by the King. But in disposing 
 of the matter the King made the significant observation 
 
The Colonial Period. 435 
 
 that the words "The People met in General Assembly" 
 were not in any other Constitution in America. This 
 charter, therefore, stands as the pioneer among charters, 
 or constitutions conferring on the people the right of 
 representative government. This charter was vetoed by 
 the King on the 3d of March, 1685. The assembly held 
 another session in October, 1684. At the conclusion of 
 this session it adjourned to meet in September, 1685. 
 
 1685, August 13. Governor Dongan issued a procla- 
 mation dissolving the assembly. This action was deemed 
 necessary in consequence of the death of Charles. The 
 question was raised whether by his death the assembly 
 was not, ipso facto, dissolved, and whether it could sit 
 again as a legally constituted legislative body. The Gov- 
 ernor and council, after mature consideration, concluded 
 to remove any doubt by formally dissolving the assembly, 
 and issuing writs for the election of another. 
 
 1685, October 20. The second general assembly began 
 its sessions. It passed six laws. At the close of the 
 session this assembly adjourned to meet September 25, 
 1686; but on the 4th of September, 1686, Governor 
 Dongan prorogued the assembly until March 25, 1687. 
 But the assembly never met again, for on the 20th of 
 January, 1687, it was dissolved by proclamation of the 
 Governor. 
 
 1686, June 10. King James issued a new commission 
 to Governor Dongan appointing him Captain General and 
 Governor in Chief of the province of New York. The 
 commission conferred on the Governor power, "with 
 the advice and consent of the council, or the major part 
 of them, to make, constitute, and ordain for the colony 
 laws, statutes, and ordinances," which should conform as 
 nearly as practicable to the laws and statutes of England. 
 Such laws were to be sent to England within three months 
 
430 Constitutional History of New York. 
 
 for the King's approbation. The council was to be com- 
 posed of seven members. 
 
 The Governor and council v^rere given power to impose 
 taxes, raise revenue, establish courts, appoint officers, 
 and, generally, to administer the affairs of the colony. 
 No provision was made for an assembly, but the legisla- 
 tive power was vested in the Governor and council, sub- 
 ject to the King's approval. Here the King receded from 
 his policy of a representative government, which he had 
 inaugurated while Duke of York, and retained in his 
 own hands the control of colonial affairs. 
 
 1686, December 9. Governor Dongan and his council 
 held their first meeting under the new commission. They 
 ordered that "all the branches of revenue, and all other 
 laws that have been made since the year 1683, except such 
 as His Majesty has repealed, remain and continue as they 
 now are till further consideration." 
 
 The Governor and council constituted the only legisla- 
 tive body in the colony, and proceeded substantially ac- 
 cording to the practice then observed in parliamentary 
 bodies. The Governor presided, and a bill was read three 
 times before final passage. 
 
 1688, April 7. The province of New York was an- 
 nexed to New England by a commission issued by the 
 King to Sir Edmund Andros, who was appointed Captain 
 General and Governor in Chief. The powers of govern- 
 ment and administration were substantially the same as 
 those conferred on Governor Dongan by his commission 
 of June 10, 1686. 
 
 1688, December 11. James H. fled from Whitehall 
 and abandoned his throne. 
 
 1689, February 13. The English Crown was tendered 
 to William and Mary and accepted by them. The execu- 
 tive power was vested in the King. "Thus for the third 
 time a Dutchman reigned in New York." 
 
The Colonial Period. 437 
 
 1689, November 14. Henry Sloughter was appointed 
 Captain General and Governor in Chief of the province 
 of New York, by a commission, substantially in the forni 
 used on the appointment of Governor Dongan. Governor 
 Sloughter was authorized, with the advice and consent 
 of the council, to call a general assembly, to be chosen 
 and constituted substantially like the earlier assemblies. 
 
 The Governor, "by and with the advice and consent of 
 the council and assembly, or the major part of them," 
 was authorized to enact for the colony "laws, statutes, 
 and ordinances" which should conform as nearly as prac- 
 ticable to the laws and statutes of England. The Gov- 
 ernor was given a veto of all laws, and they were also 
 subject to final confirmation by the Crown. Here we 
 have a revival of the policy of representative assemblies, 
 which had been inaugurated by the Duke of York in 
 1683, but which had been abandoned when the Duke 
 became King. 
 
 1690, April 24. An assembly was held under a call 
 issued by Jacob Leisler, who had taken possession of 
 the government of the province after the abdication of 
 King James. This assembly was doubtless an unauthor- 
 ized body, for the right to hold assemblies had been in 
 effect revoked by the second commission to Governor 
 Dongan, and by the commission to Governor Andros on 
 the annexation of the colony to New England. These 
 commissions vested legislative power in the Governor and 
 council. Besides, a new commission had been issued by 
 the new English government to Henry Sloughter, as 
 Governor of New York. He, alone, was authorized to 
 call an assembly. The Leisler assembly passed one law 
 at its first session. 
 
 1690, September 15. The Leisler assembly held an- 
 other session, and passed two laws. 
 
 1691, March 19. Governor Sloughter arrived in New 
 
438 Constitutional History of New York. 
 
 York, and immediately published his commission and 
 proclaimed his authority. He ordered an election of a 
 new assembly to meet on the 9th of April, 1691. 
 
 1 69 1, April 9. A new assembly, called under the 
 authority of the new English monarchy, met in the city 
 of New York, and resumed the functions of representa- 
 tive government by the people, which had been inter- 
 rupted during the reign of James II. 
 
 Thenceforth the assembly was a regular department of 
 colonial government until the Revolution, when the 
 assembly, without being regularly dissolved, ceased to 
 exist, or, at least, to exercise its functions, after April 3, 
 1775. Its successor was the first assembly under the 
 Constitution, which met at Kingston September 10, 1777. 
 
 1691, May 13. The new Charter of Liberties. — The 
 first Charter of Liberties, passed October 30, 1683, had 
 been at first approved by James as Duke of York, but 
 later was disapproved by him as King. Under the reor- 
 ganized English government of William and Mary the 
 new colonial assembly, which seemed now to promise 
 permanency, deemed it important to reassert the prin- 
 ciples contained in the original charter. The change of 
 the government and the new status of the colony towards 
 the home government were indicated in the titles of the 
 two statutes The first, 1683, is "The Charter of Liber- 
 tyes and priviledges granted by His Royall Highnesse to 
 the Inhabitants of New Yorke and its dependencyes." 
 This, though in form a statute enacted by the colonial 
 legislature, is really a grant of constitutional powers and 
 privileges by the proprietor and lord of the colony. 
 When the new statute of 169 1 was passed the title of the; ' 
 proprietor had become merged in the Crown ; so here we 
 have "An Act Declaring What are the Rights and Privi- 
 leges of Their Majestyes Subjects Inhabiting within 
 
The Colonial Period. 
 
 439 
 
 Their Province of New York." This indicated a new 
 relation, which was continued until the Revolution. 
 
 New York, from its condition as a Dutch commercial 
 settlement under the jurisdiction and control of a foreign 
 corporation, and then as a colony under an English lord 
 proprietor, had become in the process of evolution a 
 province of the English government; and the people of 
 the province could exercise for themselves only such 
 powers of local government and possessed only such 
 privileges as were conferred on them by the Crown. 
 
 The bill for a new charter was introduced on the 27th 
 of April, 1 69 1, by the speaker, James Graham, one of the 
 most distinguished men of the colony, was passed on the 
 8th of May, and sent to the council. On the 12th the 
 council, Governor Sloughter presiding, amended the bill, 
 reducing the required quorum in the council from seven 
 to five, defining a freeholder, and adding the provision 
 against Catholics. The bill in its final form was passed 
 on the 13th of May. 
 
 The new charter is in many respects quite like its earlier 
 prototype. The preamble to the act states that the repre- 
 sentatives are "deeply sensible of their Matys most 
 gratious favor in restoring to them the undoubted rights 
 and privileges of Englishmen," by providing for "as- 
 semblies of the inhabitants, being freeholders," and vest- 
 ing them with powers of local government, which is 
 declared to be a "most excellent constitution," and one 
 "much esteemed by our ancestors." 
 
 The act then recites that the "supreme legislative power 
 and authority" shall be and reside in a governor and 
 council appointed by the Crown, "and the people by their 
 representatives, mett and convened in general assembly." 
 The act provided for annual sessions of the assembly; it 
 conferred the right to vote for representatives on "every 
 freeholder within this province and freeman in any 
 
440 Constitutional History of New York. 
 
 corporation ;" a freeholder was defined to be one who had 
 "fourty shilHngs P. Annum in freehold;" it contained 
 an apportionment of members of future assemblies; it 
 made the assembly the judge of the election and qualifica- 
 tions of its members; it exempted members from arrest 
 during the session, and while going to and returning from 
 the same ; it provided for elections to fill vacancies in the 
 office of representatives ; it fixed the quorum in the council 
 at five; it reasserted substantially the rights of citizens 
 stated in the 39th and 40th Articles of Magna Charta, and 
 also other provisions of that great instrument; it pro- 
 vided for a grand jury in criminal cases, and for a trial 
 jury of twelve in all cases ; it contained provisions against 
 quartering soldiers, and also against commissions under 
 martial law; it declared all lands "freehold and inher- 
 itance in free and common soccage according to the 
 tenure of East Greenwich" in England ; it made a convey- 
 ance by a married woman invalid, unless on a private 
 examination she acknowledged that the conveyance was 
 made "freely and without threats or compulsion of her 
 husband;" it conferred religious liberty on those who 
 "profess faith in God by Jesus Christ His only Son," 
 excepting "persons of the Romish religion," "who were 
 prohibited from exercising their manner of worship con- 
 trary to the laws and statutes" of England. 
 
 On the 1 6th of May the Governor, council, and as- 
 sembly met at the fort and proceeded in a "solemn 
 manner" to the City Hall, where the act, with others, was 
 read and proclaimed. 
 
 Under Governor Sloughter's commission, authorizing 
 an assembly and providing for local government by the 
 people through a colonial legislature, this act became 
 effectual on its approval by the Governor and council, 
 but subject to its disapproval or repeal by the home 
 government. The act was committed to the Lords of 
 
The Colonial Period. 441 
 
 Trade for their consideration, who, on the i ith of May, 
 1697, reported adversely, objecting, among other things, 
 that the act gave to the representatives "too great and 
 unreasonable privileges during the sitting of the as- 
 sembly;" also that the exemption from quartering sol- 
 diers was too broad. They also objected that the act 
 contained "several large and doubtful expressions." 
 (Perhaps these were the quotations from Magna Charta.) 
 The Lords of Trade recommended that the act be re- 
 pealed, and that a charter substantially like that recently 
 granted to Virginia be proposed for New York and 
 passed by the assembly. 
 
 While this act did not receive the royal assent, it was 
 in force in the colony more than six years, and probably 
 its repeal by the Crown did not materially affect any 
 principle declared in it. 
 
 The Colonial Legislature. 
 
 "There is no new thing under the sun." Old things 
 appear in new forms. Things which we call new are 
 evolutions or variations from earlier forms, or the appli- 
 cation of forces already existing, but hitherto unknown, 
 or not understood. There is little actually new in our 
 modern forms of government. They continue, often 
 with very slight variations, conditions and methods which 
 have long been in use. The genesis of our modem legis- 
 lature is not hard to find. It is a lineal descendant of 
 the colonial legislature, and the origin of that body is 
 found far back in the history of organized society. 
 
 Under the new arrangement, inaugurated in 1691, the 
 legislature took on the form which it has since retained, 
 an elective senate under the Constitution being substi- 
 tuted for an appointive council. The assembly of 1905 
 is substantially the assembly of 1683 ; more numerous 
 than its early predecessor and chosen by a constituency 
 
442 Constitutional History of New York. 
 
 with broader qualifications, but illustrating in its selection 
 the same general principles of representation. The first 
 assembly was chosen primarily on the principle of local- 
 ity, combined with the principle that the larger settlements 
 were entitled to a larger representation. Thus, in the 
 first assembly we find that Staten Island, Schenectady, 
 and Pemaquid had one delegate each, Martha's Vineyard 
 and Nantucket together one, Esopus, and each of the 
 three ridings on Long Island, two each, Albany with 
 Rensselaerwyck two, and New York with Harlem four, 
 making eighteen in all. 
 
 These two principles of locality and population were, 
 on the organization of the state and Federal governments, 
 adopted as the most satisfactory principles of representa- 
 tion. In the state Constitution the county was made the 
 unit of representation in the assembly, and in the Federal 
 Constitution the state was made the unit of representation 
 in the House of Representatives. 
 
 The early colonial legislative system, like that of to-day, 
 was divided into three parts, namely, the governor, the 
 council, — now the senate,- — and the assembly. The coun- 
 cil and the assembly sustained to each other practically 
 the relations which exist now between the senate and 
 assembly. The status of the governor in relation to legis- 
 lation was somewhat different in the early days, for he 
 then had an absolute veto on all legislation. No bill 
 could become a law without his assent. The legislature 
 had not then been vested, as it is now, with supreme legis- 
 lative power, independent of any authority, within the 
 limitations of the Constitution. The colonial governors 
 possessed complete control over legislation. That con- 
 dition has no parallel under our modern Constitution, 
 except during the "thirty-day period" following the final 
 adjournment of the legislature, during which time no 
 bill can become a law without the governor's approval. 
 
The Colonial Period. 443 
 
 At first, while the governor sat with the council, he 
 passed on bills at a session of the council, the assembly 
 not being present. After he discontinued sitting with 
 the council, in consequence of the decision of the Lords 
 of Trade in 1735, it was the custom for the governor to 
 meet the council and assembly in joint session, and there 
 consider the bills, and sign such as met his approval. 
 After such approval, it was the custom for the governor, 
 the council, and the assembly, and sometimes the mayor 
 and common council of New York, to proceed in a 
 "solemn manner" to the City Hall, in fi'ont of which the 
 new laws were read and published. Copies were there- 
 upon sent to the King for his approval. 
 
 For obvious reasons the relation of the King to legis- 
 lation is omitted from our consideration in this examina- 
 tion of the colonial legislative system; for the King, 
 although he had delegated to the governor, council, and 
 assembly the power to make laws for the colony, and 
 did not himself initiate legislation, reserved an absolute 
 yeto on all bills; and in practice, according to the records, 
 he sometimes "repealed" laws, and from that time they 
 had no effect. 
 
 The colonial council antedates English sovereignty in 
 New York. Its existence began in 1626 under the admin- 
 istration of the Director General, Peter Minuit, who had 
 a council of five. His successor. Van Twiller, had a 
 council of four; the next Director, Kieft, reduced the 
 council to one member; it was increased to six under 
 Peter Stuyvesant, the last of the Dutch governors. Under 
 the first English governor, Richard Nicblls, the council 
 was composed of five members. From that time through 
 the remainder of the colonial period the number varied. 
 Governor Bellomont had a council of thirteen; some 
 governors were authorized to have a council of ten mem- 
 bers, others seven. In 1721 there were twelve members, 
 
444 Constitutional History of New York. 
 
 in 1739, nine, and in 1767 the number was limited to 
 twelve. 
 
 Members of the council usually received their appoint- 
 ment from the Crown, but the governors had a qualified 
 right to fill vacancies. Governor Fletcher's commission 
 authorized him to appoint members of the council, who 
 held their office until disapproved by the Crown ; but the 
 Crown reserved the right to appoint in case of vacancy, 
 and persons appointed by the Crown held in preference 
 to those appointed by the governor. Governor Bello- 
 mont had the right of appointment, and also of nomina- 
 tion, in case of vacancy. 
 
 The instructions to Governor Sloughter, which ac- 
 companied his commission, directed him "to permit the 
 members of our council to have and enjoy freedom of 
 debate, and vote in all things to be debated of in council." 
 
 The functions of the council are thus defined by the 
 attorney general and solicitor general in their opinion, 
 dated January 15, 1735, concerning the governor's right 
 to act as a member of the council : "The council sits in 
 two capacities; namely, as one part of the legislature, and 
 as a council to advise and assist in all political cases, and 
 governors are restrained by their instructions not to act 
 without the advice and consent of the majority of them." 
 
 This double function of the early colonial council has 
 continued in our modern senate, and the provision in our 
 Constitutions and statutes requiring the confirmation of 
 executive appointments by the senate gives the senate 
 jurisdiction in "political cases," with substantially the 
 powers vested in its colonial predecessor. The phrase 
 "by and with the advice and consent" of the senate, so 
 often used in modern statutes and constitutions, has an 
 ancient origin : it is found in the royal commissions issued 
 to the colonial governors, who were permitted to act in 
 certain cases only "by and with the advice and consent" 
 
The Colonial Period. 445 
 
 of the council. The phrase also appears in the enacting 
 clause of English statutes from a very early period, and 
 in which clause the law is said to be enacted by the King 
 "by and with the advice and consent" of Parliament. 
 The framers of the first Constitution were familiar with 
 this limitation on executive authority, and when the 
 transition from the colony to the state was effected it 
 was but natural that it should be continued under the new 
 conditions by which the province became a sovereign 
 state, combining all the powers, which before were 
 divided between the colonial and home governments. 
 
 Members of the council were required to be freehold- 
 ers, inhabitants of the province, "men of estate and 
 ability, and not necessitous people, or much in debt." It 
 will be noted that by the first Constitution members of the 
 senate, which succeeded the colonial council, were also 
 required to be freeholders and be chosen by freeholders. 
 
 At first, after the permanent establishment of a legisla- 
 tive system in 169 1, under the Sloughter commission, the 
 governor was deemed a member of the council, sitting 
 with it, voting at his pleasure on any proposition, and also 
 as its presiding officer, giving a casting vote in case of a 
 tie. He thus had two votes as a member of the council ; 
 then, as governor, he acted on each bill, and so had, or 
 might have had in some cases, three votes. It is said 
 that this condition continued without question until 1733, 
 when, in consequence of a controversy between Governor 
 Cosby and some members of the council, the suggestion 
 was made that he could not legally act as a member of the 
 council. The matter was referred to the law officers of 
 the home government, who, after consideration, decided 
 that the governor should not "in any case sit and vote 
 as a member of the council." This decision was rendered 
 in 173s, and was duly communicated to the colonial gov- 
 ernment. Beginning with 1736 the governor did not 
 
44^ Constitutional History of New York. 
 
 sit with the council, and that body chose its own presid- 
 ing officer, who was called the speaker. The chief justice 
 was at first chosen speaker, but, the business of the court 
 preventing his attendance, a rule was adopted that the 
 oldest councilor present should preside at its sessions. 
 
 On the 2ist of October, 1736, the common council of 
 New York adopted a resolution tendering the use of the 
 common council chamber for the legislative council, re- 
 citing "that the legislative council, while acting in a 
 legislative capacity, are to act as a distinct body by them- 
 selves without the presence of the governor or com- 
 mander-in-chief of this province." The resolution further 
 recited that the assembly was already holding its meetings 
 in the same building, and that if the council also held its 
 meetings there "both houses of the legislature may have 
 speedy recourse to each other." 
 
 A significant feature of this resolution is the use of the 
 phrase "both houses of the legislature," treating the 
 governor's council as a distinct and independent branch 
 of the legislature. 
 
 After the decision, by the law officers of the home gov- 
 ernment, that the governor could not sit with the council 
 while acting in a legislative capacity, the governor's rela- 
 tion to legislation became practically the same as that 
 sustained by the governor under the Constitution, except 
 that his approval was necessary in all cases before a bill 
 could become a law. The council took the name of the 
 "legislative council," but it acted also as an executive 
 council, and was known in official correspondence of the 
 period as "His Majesty's Council." 
 
 The council conducted its legislative business accord- 
 ing to the usual parliamentary forms, and its journals — 
 at least in outline — read much like the journals of modern 
 legislative bodies. The council read bills three times, 
 referred them to a general committee, practically a com- 
 
The Colonial Period. 447 
 
 mittee of the whole, amended bills, and occasionally, but 
 not often, proposed original bills. In 1705 the council 
 sought to amend a money bill which had been passed 
 by the assembly. The right of the council to make such 
 amendments was denied by the assembly, which claimed 
 exclusive jurisdiction of money bills, thus asserting an 
 ancient right of the House of Commons. The question 
 was submitted to the Lords of Trade, who, in 1706, in- 
 formed the Governor that, in their opinion, the council 
 had as much right as the assembly to originate money 
 bills, or to amend such bills passed by the assembly. The 
 controversy was renewed on the same grounds in 17 10, 
 with the same result; but the opinions expressed by the 
 Lords of Trade did not affect the judgment of the as- 
 sembly, nor its claim that it had exclusive power to orig- 
 inate and control money bills. The colonial records show 
 that even as late as 1751 a money bill which was orig- 
 inated and passed by the council was rejected by the 
 assembly because that body had the exclusive right "to 
 begin all bills for raising and disposing of money." 
 
 The colonial legislature was a miniature Parliament. 
 The governor, coming from England with the King's 
 commission, represented the sovereign; the council was 
 the House of Lords, and the assembly the House of Com- 
 mons. The governor exercised in the colony, especially 
 in relation to the legislature, substantially the prerogative 
 of the King in relation to Parliament. The procedure 
 on the organization of an assembly was very similar to 
 that incident to the organization of a new House of 
 Commons. The Encyclopaedia Britannica (vol. 18, 
 p. 311) gives the following description of the organiza- 
 tion of Parliament : 
 
 "On the day appointed by royal proclamation for the 
 meeting of a new Parliament, both Houses assemble in 
 their respective chambers, when the Lords Commissioners 
 
448 Constitutional History of New York. 
 
 for opening the Parliament summon the Commons to 
 the bar, by the gentleman usher of the black rod, to hear 
 the commission read. The Lord Chancellor then states 
 that, when the members of both Houses shall be sworn. 
 Her Majesty will declare the causes of her calling this 
 Parliament ; and, it being necessary that a Speaker of the 
 House of Commons shall be first chosen, the Commons 
 are directed to proceed to the appointment of a Speaker, 
 and to present him, on the following day, for Her 
 Majesty's royal approbation. The Commons at once 
 withdraw to their own House and proceed to the election 
 of their Speaker. The next day the Speaker-elect pro- 
 ceeds, with the House, to the House of Lords, and, on 
 receiving the royal approbation, lays claim, in the accus- 
 tomed form, on behalf of the Commons, 'to their ancient 
 and undoubted rights and privileges.' The Speaker, now 
 fully confirmed, returns to the House of Commons, and, 
 after repeating his acknowledgments, reminds the House 
 that the first thing to be done is to take and subscribe the 
 oath required by law. Having first taken the oath him- 
 self, he is followed by other members, who come to the 
 table to be sworn. The swearing of members in both 
 Houses proceeds from day to day, until the greater num- 
 ber have taken the oath, or affirmation, when the causes 
 of summons are declared by Her Majesty in person, or by 
 commission in the 'Queen's speech.' This speech being 
 considered in both Houses, an address in answer is agreed 
 to, which is presented to Her Majesty by the whole 
 House, or by 'the Lords with White Staves' in one House 
 and Privy Councilors in the other." 
 
 The journal of the legislative council for April 9, 169 1, 
 when the first Sloughter assembly was organized, affords 
 an interesting parallel to the organization of Parliament. 
 The journal reads: "The Representatives appeared in 
 their accustomed method and presented Mr. James Gra- 
 
The Colonic Period. 449 
 
 ham their speaker, who, being approved of, desired their 
 former Rights and Privileges, viz., that none of their 
 members nor their servants be arrested nor molested dur- 
 ing the Sessions ; that they may have freedom of accesse 
 to his Excellency and Council when Occasion presents; 
 that they may have liberty of speech and a favourable 
 construction made upon all Debates that may arise 
 amongst them, and for the removeall of all misunder- 
 standings that a Committee of the Council may Joyne 
 with a Comittee of their House to conferr on what mat- 
 ters may occurr, and this their demande may be approved 
 by his Excellency and Council and entered in their Coun- 
 cil book; which are allowed and approved of accord- 
 ingly." _ 
 
 The journal of the Colonial Assembly shows, without 
 exception, that on the organization of the legislature, 
 following the election of a new assembly, from the first 
 assembly, of 1691, to the last, in 1769, the speaker was 
 approved by the governor, and the assembly demanded 
 and received a confirmation of its ancient privileges. In 
 this procedure the Colonial Assembly followed the ancient 
 custom of the House of Commons. 
 
 It is not surprising that the governor, council, and as- 
 sembly, with four centuries of parliamentary experience 
 behind them, should have adopted the procedure of the 
 home legislature, with which they were familiar, nor that 
 they should have tried to reproduce in the city of New 
 York some of the stately ceremonial of Westminster. 
 
 The journals of the colonial council and assembly show 
 ■that on the day when the writs of election were returnable 
 the governor, the council, and the assembly met together ; 
 the governor sometimes directed the assembly to choose 
 a speaker and present him to the governor for his ap- 
 proval, and the speaker was sometimes chosen without 
 such formal direction. The governor, after the approval 
 Vol. I. Const. Hist.— 29. 
 
450 Constitutional History of New York. 
 
 of the speaker, made a speech in the presence of both 
 houses concerning colonial affairs, and recommending 
 such measures as he thought pertinent for the considera- 
 tion of the legislature. A copy of this speech was deliv- 
 ered to each house and entered on its journal. The jour- 
 nals also show that the council and assembly usually gave 
 formal consideration to the governor's speech, and pre- 
 sented an address, in reply to which the governor some- 
 times presented a formal answer. 
 
 The first speech of the governor that I have been able 
 to find was made to the legislature in 1692. This speech, 
 and subsequent speeches by the governor during the 
 colonial period, do not differ materially in form from the 
 modern messages transmitted to the legislature by the 
 governor under the Constitution. The governor's speech 
 will be considered again in the chapters on the first and 
 second Constitutions, but it is worth noting here that the 
 custom of making a speech to the legislature, initiated 
 in 1 69 1, continued one hundred and thirty-two years, 
 when it was abolished, by the second Constitution, which 
 took effect December 31, 1822. 
 
 The formalities observed in that early period are indi- 
 cated by an entry in the council journal, September 12, 
 1693, which informs us that the governor, in closing his 
 speech addressing the assembly, said: "I leave these 
 things before you for your consideration, which consists 
 of but three heads : Your duty to God, your loyalty and 
 affection to the best of Kings, and your own safety and 
 defense. Soe, Gentlemen, you may withdraw to your 
 house. I pray God to direct you to proceed in these 
 things which are most consistent with conscience and 
 honour." 
 
 "The representatives made a bow and withdrew." 
 
 Under the Dongan commission, which authorized the 
 first assembly of 1683, the maximum number of members 
 
The Colonial Period. 45 1 
 
 was fixed at eighteen, and writs were issued by the Gov- 
 ernor for the election of this number. The commission tO' 
 Governor Sloughter, under which the assembly of 169 1 
 was called, did not fix or limit the number of members. 
 This assembly was composed of seventeen representatives. 
 
 Governor Sloughter, by his commission, received au- 
 thority to "adjourn, prorogue, and dissolve" the assembly^ 
 at his discretion. The power of proroguing the House 
 of Commons had already been exercised by English sov- 
 ereigns for more than two centuries, and it was a familiar 
 element of the parliamentary system. It was frequently 
 exercised by the colonial governors, and the tenacity o£ 
 habit, even in public affairs, is illustrated by the continu- 
 ance of this feature of executive authority under the first 
 Constitution. General George Clinton, the first Gover- 
 nor of the state, prorogued the first legislature twice be- 
 fore it actually met, but I find no instance of the exercise 
 of this power afterwards, except once in 1812 by Gov- 
 ernor Tompkins, and the authority to prorogue the legis- 
 lature was discontinued by the second Constitution. 
 
 Under the commission issued to Governor Sloughter, 
 the members of assembly were required to take "the oaths 
 appointed by act of Parliament to be taken instead of 
 the oaths of Allegiance and Supremacy, and the Test." 
 The first oath referred to was prescribed by i William 
 and Mary, c. 8 (1688 [9]), in the following form: 
 
 "I, A. B., do sincerely promise and swear, that I will 
 be faithful and bear true allegiance to Their Majesties 
 King William and Queen Mary ; so help me God." 
 
 "I, A. B., do swear that I do from my Heart abhor and 
 detest and abjure, as impious and heretical, that damnable 
 doctrine and Position, that Princes excommunicated or 
 deprived by the Pope or any authority of the See of 
 Rome may be deposed or murdered by their subjects, or 
 any other whatsoever." 
 
452 Constitutional History of New York. 
 
 "And I do declare, that no foreign Prince, Person, Prel- 
 ate, State, or Potentate, hath or ought to have any juris- 
 diction, power, superiority, pre-eminence, or authority, 
 ecclesiastical or spiritual, within this realm. So help me 
 God, etc." 
 
 This statute applied to all cases after the ist of May, 
 1689. 
 
 The "Test" refers to the requirements of 25 Car. II., c. 
 2 (1672), by which no person was entitled to hold a pub- 
 lic office unless he had "received the sacrament of the 
 Lord's Supper according to the usage of the Church of 
 England," and had also made a written declaration 
 against the doctrine of transubstantiation. These oaths 
 were continued during the colonial period. 
 
 On the organization of the first assembly, April 9, 1691, 
 all the representatives took both oaths, except the two 
 burgesses elected from Queens county, who, being Quak- 
 ers, "made some scruple of taking the oaths, but were 
 willing to sign the Test and engage to perform the Tenor 
 of the oaths under the Penalty of Perjury." On their 
 refusal to take the formal oath they were "dismissed." 
 
 The first Constitution contained no provision on the 
 subject of official oaths, but in the second Constitution 
 i( 1821 ) the official oath was prescribed with the additional 
 provision, since continued, that "no other oath, declara- 
 tion, or test shall be required as a qualification for any 
 •office of public trust." 
 
 A few general notes concerning the colonial period will 
 close this part of our subject. The laws enacted by the 
 colonial legislature were published and distributed in 1897 
 by the Statutory Revision Commission, under the author- 
 ity of the state, and are accessible to all who may wish 
 to study the legislation of this period. Incidentally, it 
 should be noted, as an item in the transition from Dutch 
 to English control, that in 1687 Governor Andros and his 
 
The Colonial Period. 453 
 
 council, there being no assembly, enacted a law requiring 
 all legal documents to be in the English language. The 
 apparent need of legislative counsel appears from the 
 request of the assembly in May, 1691, that the governor 
 appoint the attorney general or some other fit person to 
 draft bills for the assembly. 
 
 By an act passed in 1699, voters for members of assem- 
 bly must have been freeholders three months before the 
 test of the writ of election. In 1701 a statute was passed 
 providing that any "Papist or Popish recusant" might be 
 challenged by the sheriff or any candidate for assembly, 
 and his vote excluded, unless he should take the oath and 
 subscribe the test required of members of assembly. In 
 1737 a law was passed requiring annual meetings of the 
 assembly, and fixing the maximum term of representa- 
 tives at three years. This law also required the governor 
 to issue writs for a new election within six months after 
 a dissolution of an assembly. This act was repealed by 
 the King November 30, 1738; without assigning any rea- 
 son. In 1743 a law was passed fixing the term of repre- 
 sentatives at seven years. In 1769 nonresident freehold- 
 ers were given the right of suffrage the same as if they 
 were residents, and were entitled to vote for representa- 
 tives in assembly. By the same act representatives in 
 the assembly must have resided at least six months in the 
 district from which they were elected, and were further 
 required to have been qualified freeholders for the same 
 period. Voters in New York and Albany must have 
 been freemen there at least three months before the elec- 
 tion. In 1770 judges of the supreme court were declared 
 ineligible as representatives in the assembly. This pro- 
 vision was by the statute based on the "ancient usage of 
 Parliament," which excluded judicial officers from seats 
 in the House of Commons. 
 The assembly, from a membership of eighteen in 1683, 
 
454 Constitutional History of New York. 
 
 and seventeen as reorganized in 1691, gradually increased 
 in numbers during the colonial period, but apparently not 
 in proportion to the increase in population. The last 
 colonial assembly had a membership of thirty-one. This 
 number was evidently deemed too small for the new 
 state, and the framers of the first Constitution therefore 
 provided for a larger assembly, fixing the minimum num- 
 ber at seventy, and providing for a gradual increase to 
 three hundred. 
 
 The Colonial Judiciary. 
 
 It has been said that the judicial system of the state of 
 New York is a growth of the soil. It has been developed 
 from small beginnings, and has a mixed Dutch and Eng- 
 lish origin. The system, which is the pride of the Em- 
 pire state to-day, is the result of many struggles, much 
 halting and uncertainty, and numerous compromises. The 
 judicial system of any commonwealth is an index of its 
 character, customs, and civilization. The rude judicial 
 tribunals of the early colonial period were copied from 
 those of European countries, with the modifications re- 
 quired by pioneer conditions and the necessary simplicity 
 of provincial life. The development of those tribunals is 
 an interesting study; and it will be profitable to trace 
 briefly the growth of our judicial system from the earliest 
 Dutch occupation of Manhattan Island, reserving ' for 
 subsequent chapters a more detailed history of particular 
 courts. 
 
 The colony of New Netherland was planted by the 
 great West India Company, a commercial corporation of 
 Holland. "It was exclusively intrusted with the adminis- 
 tration of justice in the colonies it should establish, hav- 
 ing the right to appoint officers of justice, to maintain 
 order and police, and generally, in the language of the 
 charter, to do all that the service of those countries might 
 
The Colonial Period. 455 
 
 require." From the discovery of Manhattan Island by 
 Captain Henry Hudson, in 1609, to 1623 no regular at- 
 tempt had been made to establish a colony; but in the 
 latter year the colony of New Netherland was formally 
 organized, and a settlement was established at Manhattan, 
 the present site of the city of New York. Whether under 
 the administration of May, the first director, or that of 
 his successor, Verhulst, any provision was made for 
 judicial tribunals cannot now be determined. The num- 
 ber of the colonists was so small, and they were so fully 
 occupied in providing for their immediate wants, that 
 there could be little, if any, occasion for organizing 
 courts. 
 
 Minuit came out as Governor in 1626, and "he had, 
 to assist him, a council of five, who, with himself, were 
 invested with all legislative and judicial powers, subject 
 to the supervision and appellate jurisdiction of the Cham- 
 ber at Amsterdam." There was also attached to the body 
 an officer well known in Holland by the name of the 
 "schout-fiscal." "He was a kind of an attorney general, 
 uniting with the power of a prosecuting officer the execu- 
 tive duties of a sheriff." The administration of justice 
 was left to this body — the governor, the council, and the 
 schout-fiscal — during the six years of Minuit's incum- 
 bency and the four of his successor. Van Twiller, — that is, 
 from 1626 to 1637. In what manner judicial proceedings 
 were conducted is unknown. Records were kept under 
 Van Twiller, but they are utterly lost. 
 
 William Kieft came out as governor in 1638, and he 
 misgoverned the colony for nine years, ruling with a high 
 hand, and retaining in his own hands the sole administra- 
 tion of justice. He was obliged to have a council, but he 
 reduced it to one member, reserving two votes to himself. 
 The administration of Kieft was so oppressive and tyran- 
 nical that he was constantly in trouble with his people, 
 
456 Constitutional History of New York. 
 
 who demanded the establishment of the courts to which 
 they had been accustomed in Holland. This agitation 
 finally resulted in Kieft's recall. He was succeeded in 
 1647 by Peter Stuyvesant, who immediately established a 
 court of justice with power to decide "all causes whatso- 
 ever," subject to appeal to the governor in certain cases. 
 
 The desire for popular government had manifested 
 itself very strongly during Kieft's administration; and 
 soon after Stuyvesant's arrival he found the sentiment so 
 vigorous that he was obliged to make some concessions. 
 He provided for the tribunal of the Nine Men to which 
 I have already referred. "These Nine Men were to hold 
 courts of arbitration weekly, and were to give advice to 
 the Director and council in all matters submitted to 
 them." As already stated, "three were taken from the 
 merchants, three from the burghers, and three from the 
 farmers. Thus was preserved and continued the system 
 of municipal organization in the Netherlands." Three 
 of their number attended in rotation upon every court 
 day, to whom civil causes were referred as arbitrators. 
 But there was constant collision between the Governor 
 and the people. His government became insufferably op- 
 pressive. The colonists appealed to the home company, 
 and after five years of struggle succeeded in procuring an 
 order for the establishment in the colony of a municipal 
 court of justice, to be composed of one schout, two burgo- 
 masters, and five schepens. A burgomaster was a kind 
 of mayor ; a schepen was an officer resembling an alder- 
 man ; and a schout combined the functions of a sheriff and 
 a district attorney. "On the 2d of February, 1653, Gov- 
 ernor Stuyvesant issued a proclamation appointing as 
 burgomasters Arent Van Hatten and Martin Krieger, 
 and as schepens Paulus L. Van der Grist, Maximilian Van 
 Gheel, Allard Anthony, Peter W. Cowenhoven, and Wil- 
 liam Beekman; Cornelius Van Tienhoven was schout, 
 
The Colonial Period. 457 
 
 and Jacob Kip was clerk." The magistrates met on the 
 7th and gave notice that the court would meet at the City 
 Hall "every Monday morning at 9 o'clock" for hearing 
 and determining all disputes between parties as far as 
 practicable. The City Hall not being in readiness on the 
 following Monday, the next meeting took place four days 
 afterwards at the fort, when the court was organized for 
 the despatch of business, and the proceedings were opened 
 with prayer. This court was called the "Worshipful 
 Court of the Schout, Burgomasters, and Schepens." 
 Stuyvesant did not like the court. He and the members 
 of it were frequently in collision, and he sometimes con- 
 temptuously referred to it as "the little bench of justice;" 
 but it seems to be well established that "the court was 
 composed, in the main, of magistrates who were men of 
 intelligence, independence, and high moral character, 
 evincing an imswerving adherence to established rules and 
 customs, sterling good sense, and a strong love of jus- 
 tice." The procedure in this court was simple and sum- 
 mary, and strongly resembles, in many respects, the pro- 
 cedure established for the Roman people by the law of the 
 Twelve Tables. The court exercised unlimited civil and 
 criminal jurisdiction, except the infliction of punishment 
 in capital cases. When judgment was given against a 
 defendant for a sum of money, time was given for pay- 
 ment, — usually fourteen days for the discharge of one 
 half, and the remainder in a month. If he did not pay 
 within the time fixed, proceedings were taken to levy on 
 his goods, which were taken by the officer and detained 
 six days subject to redemption; at the end of that time, 
 if not redeemed, the property was sold at auction in a very 
 peculiar manner. "The officer lighted a candle and the 
 bidding went on while it was burning, and he who had 
 offered the most at the extinction of the candle was de- 
 clared the purchaser." 
 
458 Constitutional History of New York. 
 
 The court did a general business, and was also a court 
 of admiralty, and court of probate in taking proof of last 
 wills and testaments and in appointing curators to take 
 charge of the estates of widows and orphans. Some of 
 its proceedings in the exercise of this branch of its juris- 
 diction will serve to illustrate how tenaciously the Dutch 
 clung to old forms or legal ceremonies ; as, when a widow, 
 to relieve herself from certain obligations, desired to 
 renounce her husband's estate, it is, in all such cases, 
 recorded that the intestate's estate "has been kicked away 
 by his wife with the foot," and that she had duly "laid the 
 key on the coffin." 
 
 It is worthy of note that the origin of a fee bill for 
 regulating, by a fixed and positive provision of law, the 
 costs of attorneys and other public officers is to be traced 
 to Stuyvesant. On the 25th of January, 1658, he issued 
 a proclamation with a preamble reciting the abuses that 
 had arisen, by reason of the conduct of certain officers in 
 demanding excessive fees, and fixing, with detail, the fees 
 thereafter to be charged. "It is then provided that the 
 officers enumerated shall serve the poor gratis for God's 
 sake, but may take from the wealthy the fees specified." 
 
 Courts of a similar character were established in other 
 parts of the province. From all these local courts an 
 appeal lay to the appellate court, composed of the Gov- 
 ernor and council at New Amsterdam. These consti- 
 tuted the judicial tribunals of New Netherland until the 
 colony passed into the hands of the English, which event 
 occurred on the 6th of September, 1664, N. S. Col. 
 Richard Nicolls, the first English Governor, immediately 
 changed the name of the colony and city to New York, 
 but no change was made in the courts until a later period. 
 
 The "Duke's Laws," promulgated March i, 1665, pro- 
 vided for arbitrators, a court to be held by the constable 
 and overseers, justices of the peace, courts of sessions. 
 
The Colonial Period. 459 
 
 courts of oyer and terminer, and a court of asaizes with 
 appellate jurisdiction. Justices of the peace were com- 
 missioned for the various towns and were clothed with 
 all the powers exercised by such officers in England. A 
 local court was created in each town for the trial of ac- 
 tions of debt or trespass under £5. Six overseers, elected 
 by the people, with a constable, or seven withotit him, con- 
 stituted a quorum for the transaction of business; all 
 questions were determined by a vote of the majority, and, 
 if the overseers were evenly divided, the constable had 
 the casting vote. In 1666 the number of overseers was 
 reduced to four, and any two of them, with the constable, 
 held the court ; the town clerk was clerk of the court. 
 
 The province was divided into three ridings, known as 
 the east, west, and north riding, and in each a court of 
 sessions was established, which was held twice a year; 
 that is, on the first, second, and third Wednesdays in 
 March and the corresponding Wednesdays in June. The 
 court of sessions was held by all the justices living in the 
 riding. All actions at law, and all criminal cases, were 
 tried before a jury. The jurors were drawn from the 
 overseers, each town electing eight. "Seven jurors were 
 impaneled for the trial of a cause, and the verdict of a 
 majority was sufficient, except in capital cases, when the 
 court might impanel twelve, which was uniformly done, 
 and the twelve were required to be unanimous." This 
 court had both civil and criminal jurisdiction. It was 
 also a court of probate, and exercised the jurisdiction now 
 intrusted to surrogates. 
 
 The highest tribunal in the province was the court of 
 assize, or, as it was sometimes called, the general assizes. 
 It was held once a year in the city of New York by the 
 Governor and council and such of the justices of the 
 peace as saw fit to attend it. This court had original ju- 
 
460 Constitutional History of New York. 
 
 risdiction, civil, criminal, and equitable, and was the ap- 
 pellate court from the inferior tribunals. 
 
 In June, 1665, the court of burgomasters and schepens 
 was abolished in the city of New York and a new court 
 organized called the mayor's court, a title by which it 
 was known for one hundred and forty-six years. The 
 members of the court were the mayor, alderman, and sher- 
 iff. The change was more formal than real; "it was 
 merely altering the burgomaster into a mayor, the schepen 
 into an alderman, and the schout into a sheriff." The 
 records were directed to be kept in English and Dutch, 
 and a jury of twelve was required to be impaneled for the 
 trial of civil causes. 
 
 There was no court of chancery, but matters in equity 
 were heard in any of the courts organized in conformity 
 to the Duke's Laws. On the 9th of August, 1673, the 
 city was retaken by the Dutch, who iinmediately under- 
 took to re-establish the former judicial tribunals ; but they 
 held the city only a little more than a year, when the Eng- 
 lish reconquered it and terminated the Dutch dynasty. 
 The English courts were reorganized in 1674, and con- 
 tinued from that time, with various modifications, until 
 1685, when a momentous change occurred in the system 
 of government. Dongan was appointed Governor in 1682. 
 Upon the advice of William Penn, James, then Duke of 
 York, yielded to numerous requests made by men of every 
 rank in the province, and in 1683, ordered Governor Don- 
 gan to call an assembly. 
 
 In tracing the institutions of our state, Robert Ludlow 
 Fowler, to whom I am indebted for many facts relating 
 to the early courts, remarks: "Our present law is the 
 result, modified by certain acidents, of all that which has 
 been happening among the European residents of this 
 territory since their sojourn here. It is the result of nat- 
 ural development, and not the result of political miracles. 
 
The Colonial Period. 461 
 
 and, if it is looked on in any other light, it cannot be un- 
 derstood. . . . The acts of the first assembly are 
 still discernible in the law of to-day, and some of the 
 courts created then are still tribunals in the same jurisdic- 
 tion, and precedents then are recognized still." 
 
 This assembly passed an act dividing the province into 
 twelve counties. Its seventh act was entitled "An Act to 
 Settle Courts of Justice." By this act four distinct tri- 
 bunals were created, — "a petty court for the trial of small 
 causes for every town ; a court of sessions for each coun- 
 ty; a court of oyer and terminer and general gaol deliv- 
 ery; and a court of chancery for the entire province." 
 The court of assize was abolished. The fluctuation of the 
 jurisdiction of courts in matters of equity cognizance will 
 be observed when we recall the fact that the court of 
 assize, which was the first English court of the province, 
 possessed both law and equity jurisdiction like the present 
 supreme court of the state. The court of oyer and ter- 
 miner had both civil and criminal jurisdiction, and a 
 term was required to be held in each county once every 
 year. 
 
 I have already referred to the change in colonial affairs 
 caused by the death of Charles II., the accession of the 
 Duke of York to the throne in 1685. as James II., his abdi- 
 cation in 1688, and the accession of William and Mary 
 in 1689. I have also referred to the appointment of Gov- 
 ernor Sloughter, and the re-establishment of the Colonial 
 Assembly, which began its first session April 9, 1691. 
 The most important act of the assembly, for our present 
 purpose, was the act reorganizing the judicial system of 
 the colony. This was prepared by James Graham, the 
 speaker of the assembly, and was introduced and passed 
 on the 17th of April, 1691. 
 
 This act was regularly approved by the Governor and 
 council, and became a law on the 6th of May, 1691. It 
 
462 Constitutional History of New York, 
 
 appears as chapter 4, Laws of 1691, and will be found in 
 vol. I of the Colonial Laws of New York as published by 
 the Statutory Revision Commission. The act provided 
 for a court of chancery, a supreme court, a court of com- 
 mon pleas, courts of sessions, and justices' courts. 
 
 Immediately upon the passage of this act the supreme 
 court was organized, and Joseph Dudley was appointed 
 chief justice, Thomas Johnson, second judge, and Wil- 
 liam Smith, Stephen Van Cortlandt, and William Pin- 
 home, associate judges. The act was to be in force only 
 ten years, but it was re-enacted from time to time and 
 continued by proclamations, and was in force, with some 
 modifications, at the time of the Revolution and the 
 organization of the state government in 1777. 
 
 The supreme court was at first composed of five judges. 
 From 1701 to 1758, the number was three, — a chief jus- 
 tice and two associate justices. In the latter year a fourth 
 was added. It may, perhaps, indicate somewhat the 
 growth of the state to note that there are now seventy- 
 six justices of the supreme court, besides the court of 
 appeals, the various city and county courts, and the infe- 
 rior local tribunals in towns and villages. The judicial 
 machinery of the state has assumed vast proportions. It 
 is said that in 1741 the duty of revising the laws in force,, 
 with notes and references, was assigned to Daniel Horse- 
 manden, a justice of the supreme court, but on account of 
 his advanced age this task was not performed. This is- 
 said to have caused the adoption of the principle of limit- 
 ing the office of the judges to sixty years of age to avoid 
 the inconvenience that might result from the infirmities- 
 of advanced age. This limitation has since been extended 
 to the last day of December next after a judge shall be- 
 seventy years of age. 
 
 The state of New York formerly had a court of ex- 
 chequer, originally created by Governor Dongan in 1685,. 
 
The Colonial Period. 463 
 
 discontinued in 1691, and reorganized as a branch of the 
 supreme court in 1786, "for the better levying and ac- 
 counting of fines, forfeitures, issues, amercements, and 
 debts due to the people of the state." The court ceased 
 to exist January i, 1830. There was also a court of ad- 
 miralty, which was discontinued upon the adoption of the 
 Federal Constitution in 1789. 
 
 Growth of the Colony. 
 
 It is impracticable to present a table of the population 
 of the colony at stated intervals. During the first half of 
 the colonial period a census was not often taken ; accurate 
 statistics concerning this period are therefore not avail- 
 able, and, even when attempts were made to procure evi- 
 dence of the number of inhabitants in the colony, the re- 
 sults were often quite imperfect, and do not afford a relia- 
 ble basis for a computation of population. In its earlier 
 years the colony had many fluctuations resulting from 
 trouble with the natives, incompetent administration, and 
 inadequate home support. Notwithstanding the irregu- 
 lar methods of obtaining this information, it is possible 
 to give a quite reasonable estimate of the population of 
 the colony at different times, and during the last half of 
 the colonial period enumerations seem to have been con- 
 ducted with considerable care. Sometimes a census was 
 limited to particular localities, sometimes it included only 
 men of military age, sometimes heads of families, and an 
 occasional property census was taken. From various 
 official sources, nearly all of which will be found in the 
 colonial documents, I have prepared a statement showing 
 the population at different times, either estimated or act- 
 ually ascertained. The statement also shows some other 
 facts bearing on the development of the colony. 
 
 1641. Manhattan had at this time about 400 inhab- 
 itants. 
 
464 Constitutional History of New York. 
 
 1643. The population was estimated at 3,000. The 
 unhappy condition of the colony appears from a statement 
 by the Eight Men to the Assembly of XIX., dated October 
 24, 1643, Jii which they say: "The population is com- 
 posed mainly of women and children ; the freemen (exclu- 
 sive of the English) are about 200 strong, who must pro- 
 tect by force their families now skulking in straw huts 
 outside the fort." 
 
 1646. The population at this time was estimated at 
 1,000. This decline is said to have been due to the mal- 
 administration of Grovernor Kieft. 
 
 1647. The condition of the colony at this time is de- 
 scribed by Governor Peter Stuyvesant in a report dated 
 October 19, 1665, on the causes which led to the sur- 
 render of the colony to the English. He says that at the 
 time of his accession as Director General in 1647, "the flat 
 land was stripped of inhabitants to such a degree that, 
 with the exception of the three English villages at Heem- 
 stede, New Flushing, and Gravesend, there were not fifty 
 bouweries or planatations on it, and the whole province 
 would not muster 250, at most 300, men capable of bear- 
 ing arms." 
 
 1653. The city of New York was incorporated this 
 year, and it then, had a population of about 800. 
 
 1656. A census of the city of New York was taken 
 which showed that there were then 120 houses and 1,000 
 inhabitants. 
 
 1667. Certain Dutch merchants presented to the States 
 General a remonstrance in relation to trade with New 
 Netherland which had recently been conquered by the 
 English. The remonstrance describes the colony as a 
 "healthy and fertile country," and "therefore well adapted 
 and prepared to the support and easy subsistence of a 
 multitude of families and many thousand souls, whereby, 
 if peopled, it could be maintained and defended with a 
 
The Colonial Period. 465 
 
 small force; having, already, two tolerably well-built en- 
 closed towns, one open town, and fifteen villages, besides 
 divers extensive colonies, bouweries, and planatations in- 
 habited by more than 8,000 souls, consisting of about 
 1,500 families, all natives and subjects of this state, who 
 went thither to gain a livelihood and to settle on the 
 promise of being sustained and protected." 
 
 1673. The Dutch this year temporarily reconquered 
 and reoccupied the colony, and during such reoccupation 
 the authorities of New Orange, in a communication to 
 the States General, estimated the good Dutch inhabitants 
 with women and children at 6,000 or 7,000 souls. This, 
 apparently, did not include the English. 
 
 1678. Governor Andros estimated the number of men 
 capable of bearing arms at 2,000. According to the 
 usual ratio adopted in the colony, this would indicate a 
 population of about 10,000. 
 
 1688. Jacob Leisler and Abraham Gouverneir in a 
 memorial relating to colonial affairs in 1688 estimated 
 the population at 8,000 families, out of which there might 
 be raised 12,000 fighting men. This estimate indicates a 
 larger family ratio than is suggested in other estimates. 
 The ordinary estimate of militia is one to five of the 
 population. This would indicate a population of 60,000 
 in 1688, and, if accurate, shows a remarkable increase of 
 population in ten years. 
 
 1689. September 16, 1696, Leisler and Gouverneir 
 made another statement in which they estimated that in 
 1689 the militia amounted to 12,000 or 14,000 men, and 
 that the colony then had 8,000 or 9,000 families. 
 
 1693. Governor Fletcher, speaking of the decline in 
 the colony and the removal of many inhabitants to other 
 provinces, says : "We do now muster 3,000 men in this 
 province," making an estimated populatien of 15,000. 
 This showed a wide variance between the estimates made 
 
 Vol. I. Const. Hist. — ^30. 
 
466 Constitutional History of New York. 
 
 by Leisler and Gouverneir in 1688, and, if both estimates 
 are correct, indicates a remarkable loss of population in 
 five years. But the Governor's estimate may refer only to 
 the organized militia and not to the whole number of men 
 of military age. It seems from a remark in Governor 
 Fletcher's report that there had been a large migration 
 from the colony to escape taxation, and that the people 
 moved to other colonies which offered better inducements 
 to settlers. Mr. Gouverneir in his memorial of 1696 
 attributes the unfortunate condition of affairs in part to 
 the "oppression of the Governor." 
 
 1695. In November of this year the local government 
 of New York sent Chidley Brook and W. Nicoll to Eng- 
 land with an address to the Crown relating to colonial 
 affairs. On the voyage they were captured by enemies, 
 and threw the papers overboard; afterwards arriving in 
 England, they prepared a short memorial relating to the 
 object of their visit, in which they estimated that the 
 colony then had 3,000 families, which probably indicated 
 a population of at least 1 5,000. 
 
 1698. Attorney General Graham in a communication to 
 Governor Bellomont, dated June 30, 1698, estimated that 
 the colony then had at least 5,000 families. 
 
 1703. A general census was ordered in 1702, and also 
 a separate census of militia, including male persons from 
 fifteen to sixty years of age. The census was reported in 
 1703, and I believe this was the first regular census of the 
 entire colony. According to this census the colony then 
 had a population of 20,748. 
 
 1712, Another census was ordered, but it was not com- 
 pleted that year. Governor Hunter in a report dated the 
 1 2th of June, 1712, said he had been unable to obtain a 
 complete census, "the people being deterred by a simple 
 superstition and observation that the sickness followed 
 upon the last numbering of the people." The records 
 
The Colonial Period. 467 
 
 show, however, that the census was taken either that year 
 or within the next two years in all the counties except 
 Queens. Estimating Queens on the basis of population 
 of 1703, a probable ratio of increase, the total population 
 of the colony at this time was 28,395. 
 
 1723. The census showed a population of 34,393 whites 
 and 6,171 negroes and slaves, making a total of 40,564. 
 
 1 73 1. The census this year showed a population of 
 43,040 whites and 7,202 blacks, making a total of 50,242. 
 
 1737. Whites 51,496, blacks 8,941, total 60,437. 
 
 1746. In a census taken this year Albany county was 
 omitted, the statement being made in the report that it 
 could not be numbered on "account of the enemy." Ap- 
 plying to Albany county the ratio of increase shown in 
 the remainder of the colony, the total population 
 amounted to 62,823 whites and 11,095 blacks, making a 
 total of 73,918. 
 
 1756. Whites 83,233, blacks 13,542, total 96,775. 
 
 1771. Whites 148,124, blacks 19,883, total 168,007. 
 
 1774. No census was taken this year. Governor 
 Tryon in a report dated June 11, 1774, on the affairs of 
 the colony, answered several questions propounded by the 
 home government, in one of which he was asked to state 
 the number of inhabitants. He replied by quoting the 
 last census, taken in 1771; then on an assumed ratio of 
 increase he estimated the number of whites in 1774 at 
 161,102, and blacks at 21,149, making a total population 
 of 182,251. The Governor was also asked to give a rea- 
 son for the increase of population. Replying to this 
 question, he said : "The reasons commonly assigned for 
 the rapid population of the colonies are doubtless the 
 principal causes of the great increase in this province. 
 The high price of labor and the plenty and cheapness of 
 new land fit for cultivation, as they increase the means 
 of subsistence, are strong additional incitements to mar- 
 
468 Constitutional Histor^i of New York. 
 
 riage, and the people entering into that state more gen- 
 erally and at an earlier period of life than in Europe ; the 
 proportion of marriages and births so far exceeds that of 
 populous countries that it has been computed the colonies 
 double their inhabitants, by natural increase only, in 
 twenty years. The increase in this colony has been 
 nearly in the same proportion; but it cannot be denied 
 that the accession to our numbers by emigrations from 
 the neighboring colonies and from Europe has been con- 
 siderable, though comparatively small compared with the 
 number thus acquired by some of the southern colonies." 
 Governor Tiyon's statement shows a prosperous con- 
 dition of the colony, and his report is specially signifi- 
 cant because apparently the last official communication 
 relating to this subject prior to the Revolution. The 
 impending conflict was rapidly drawing near, and the 
 inquiry embraced in twenty-one questions submitted to 
 him by the home government was clearly for the purpose 
 of ascertaining colonial conditions, and especially the 
 strength and resources of the people, who were already 
 threatening resistence to the authority of the Crown. 
 Colonial committees had already been appointed for gen- 
 eral consultation, and a Continental Congress was about 
 to meet in Philadelphia. The rapid movement of events 
 clearly appears when we remember that scarcely ten 
 months after Governor Tryon made his report, the war 
 began at Lexington. The Governor's report is useful 
 to us in forming an estimate of the strength of the colony 
 at the beginning of the Revolution. In the same report 
 he estimates the number of available militia at 32,000. It 
 is impossible to deduce from the Governor's figures a 
 satisfactory estimate of the military strength of the col- 
 ony which might be available for supporting the patriot 
 cause, for the reason that the loyalists mvist be deducted, 
 and they constituted an unknown quantity. 
 
The Colonial Period. 469 
 
 1790. The first Federal census was taken this year, 
 and showed that New York had a population of 340,120. 
 The last colonial census was in 1771, nineteen years be- 
 fore, and showed a population of 168,007. The Federal 
 census showed an increase of 172,113, from which it ap- 
 pears that the population of the colony and state had more 
 than doubled during the period including the Revolution- 
 ary War and the subsequent seven years of peace. The 
 enumeration of electors under the first state Constitution 
 will be found in the article on apportionment. During 
 this period the Federal census furnished the only evidence 
 relating to the population of the state. The first state 
 census of inhabitants was taken in 1825. 
 
 Conclusion. 
 
 I have now traced our colonial history through its en- 
 tire period, and have noted the principal incidents directly 
 connected with the constitutional development of the 
 colony. Much history and many interesting facts have 
 necessarily been omitted here because not deemed per- 
 tinent at this time. In subsequent chapters I shall often 
 have occasion to refer to colonial history for the purpose 
 of showing the foundations of policies which have since 
 been incorporated in the Constitution, and many topics 
 which have been mentioned only briefly in this chapter 
 will there be more fully elucidated. The history of this 
 early time must ever attract the attention of the student 
 who wishes to examine the political and social develop- 
 ment of Dutch and English society during the last three 
 centuries. The events of the colonial period, unfolding 
 in sequences which seem to mark the regular evolution 
 of society, inspired with new aspirations for popular lib- 
 erty and representative government, must forever stand 
 as high expressions of the faith, and courage, and mutual 
 sympathy of the only nations which, at that time, had 
 
47° Constitutional History of New York. 
 
 been touched and awakened by the new spirit of freedom. 
 The Dutch and English ships that sailed into New York 
 harbor brought the traditions, customs, and aspirations 
 of two libei'ty-loving nations, and the Dutch and English 
 governments transferred to New York, sometimes unwill- 
 ingly, the free institutions which the colonists had so 
 deeply cherished in the Fatherland. It was eighty-two 
 years after Hudson discovered New York before con- 
 stitutional government was permanently established, and 
 this government continued eighty-four years under colo- 
 nial conditions; the first Sloughter assembly, therefore, 
 stands almost midway between the beginning and the end 
 of the colonial period. Reforms do not go backwards, 
 and once established, representative government could not 
 be abandoned in New York. 
 
 The departments into which a free government is 
 deemed most wisely divided — namely, the executive, the 
 legislature with two branches, and an independent judi- 
 ciary — had already existed eighty-six years when the 
 people of New York determined to transform the colony 
 into a state. They were, therefore, not called on to in- 
 vent any new scheme of government. They took a form 
 of government already in good working order, gave it a 
 new name, and made the state. 
 
 Many interesting events occurred during the closing 
 years of the colonial period, but they are so intimately 
 interwoven with the events preceding and accompanying 
 the Revolution that I have deemed it proper to consider 
 them in the chapter on the first Constitution. 
 
CHAPTER II. 
 
 The First Constitution, 1777. 
 
 The first Constitution of any free people possesses a 
 peculiar interest; especially is this true when, as in the 
 case of New York, the Constitution is the outgrowth and 
 culmination of more than a century of struggle for popu- 
 lar liberty. 
 
 Our first Constitution also excites additional interest 
 from the circumstances surrounding its preparation; for 
 it was not framed, as most of the later state Constitutions 
 were framed, to accomplish a peaceful transition from a 
 territorial condition to statehood, and where the authors, 
 with research and deliberation, worked out a plan of gov- 
 ernment based on the best models. The framers of our 
 first Constitution worked in the stress of war and revolu- 
 tion and without a model, except as they may possibly 
 have derived assistance from Constitutions of other states, 
 recently adopted, but under which there had been little, if 
 any, actual experience. Neither was it framed by ex- 
 perienced men of mature years, but by young men reared 
 in luxury, and who had not enjoyed the opportunities of 
 public service and acquaintance with details of public 
 affairs. John Jay, who is understood to have been the 
 chief author of the Constitution, was only thirty years of 
 age, Robert R. Livingston, one of his colleagues, was only 
 twenty-nine, and Gouverneur Morris, the other, was only 
 twenty-four, when they were appointed on the committee 
 to frame a form of government; yet these wise young 
 patriots exercised a controlling influence in preparing a 
 
 [471] 
 
472 Constitutional History of New York. 
 
 Constitution which was the fundamental law of the state 
 for forty-five years, and many of whose provisions have 
 been continued without change in all subsequent Consti- 
 tutions. 
 
 The first Constitution was framed, adopted, and put in 
 operation by a congress, or convention, chosen by the 
 people of the colony, and which, after three intermediate 
 congresses, was the successor of the colonial legisla- 
 ture. The last Colonial Assembly was chosen under 
 writs of election issued January 14, 1769, and re- 
 turnable February 14. The assembly met for its first ses- 
 sion April 4, 1769. It continued in session at different 
 times until April 3, 1775, when it was prorogued until 
 May 3, 1775. It was prorogued at j^ifferent times after- 
 wards until March 11, 1776, and then again till April 17, 
 1 776, but it did not meet at that time, and never met after 
 April 3, 1775. Events developing the Revolution were 
 crowding each other rapidly during this period, and, in 
 the absence of an assembly authorized to exercise legis- 
 lative powers and attend to the affairs of the colony, the 
 people assumed control, and at first by committees, and 
 later through elected congresses, gradually worked out a 
 plan of local administration of the colony, culminating 
 in constitutional government. 
 
 This last Colonial Assembly missed a great opportunity. 
 During the six years of its active existence the acts of the 
 British government which led to the Revolution were 
 from month to month becoming a source of serious irri- 
 tation to the colonies, and in many quarters were exciting 
 the active resistance of the people. It seems quite clear 
 that the Tory tendencies of this assembly were too strong 
 to permit it to become the efficient agency of the colony 
 in the moverhent to resist the encroachments of the home 
 government. This Tory sympathy in the assembly, com- 
 bined with the strong Tory influence of the Governor, 
 
The First Constitution, iJJT. 473 
 
 made it difficult, if not impracticable, for the assembly to 
 seize and control a situation fraught with such deep in- 
 terest to the colony. But the records show that there was 
 a strong patriotic sentiment in the assembly, though 
 apparently not strong enough to control it. This senti- 
 ment was strong enough, however, to excite the suspicions 
 of the Governor, and to lead to the numerous proroga- 
 tions which showed an unwillingness on his part to per- 
 mit the assembly to meet and resume its ordinary func- 
 tions. 
 
 A few incidents that occurred a short time before this 
 assembly held its last session show the temper of its 
 members, and the efforts made by the patriots to commit 
 it to a policy of union with the other colonies in asserting 
 the liberties of the people. These incidents also show 
 that, while the patriots made a strong and influential fac- 
 tion, they were in a minority, and their efforts in behalf 
 of colonial union and resistance were persistently opposed 
 and defeated. 
 
 The first of these incidents occurred on the 26th of 
 January, 1775, when Colonel Abraham Ten Broeck 
 moved that the assembly "take into consideration the pro- 
 ceedings of the Continental Congress held at Philadel- 
 phia in the months of September and October l^st." No 
 vote was taken on this motion, but the previous question 
 moved thereon was lost by a vote of 10 to 11. 
 
 The following delegates voted in the affirmative: — 
 Nathaniel Woodhull, Suffolk; Philip Schuyler, Albany; 
 George Clinton, Ulster; Pierre Van Cortlandt, Cort- 
 landt; Charles De Witt, Ulster; Philip Livingston, Liv- 
 ingston Manor ; Zebulon Seaman, Queens ; Abraham Ten 
 Broeck, Rensselaerwyck ; William Nicoll, Suffolk ; Simon 
 Boerum, Kings. 
 
 This little band of patriots stood firmly together for 
 the cause they had espoused, and, when the assembly suf- 
 
474 Constitutional History of New York. 
 
 fered an inglorious extinction, they joined the other patri- 
 ots in carrying forward the work which soon culminated 
 in the Revolution and independence. George Clinton 
 became first governor of the state; Philip Schuyler was 
 one of the chief military figures of the war; and Philip 
 Livingston was a member of the committee of the Con- 
 tinental Congress appointed to draft the Declaration of 
 Independence; Nathaniel Woodhull was president pro 
 tern, of the First Provincial Congress, and president of 
 the Second, Third, and Fourth Provincial Congresses, the 
 latter of which framed and adopted the first Constitution. 
 He was commissioned brigadier general in August, 1775, 
 and died at New Utrecht, September 10, 1776, in conse- 
 quence of wounds received from British troopers after he 
 had surrendered his sword. Pierre Van Cortlandt was a 
 member of the Second, Third, and Fourth Provincial 
 Congresses, vice president of the latter, president of both 
 councils of safety, member and president of the first 
 senate, first lieutenant governor, which office he held for 
 eighteen years, and was also vice chancellor. Abraham 
 Ten Broeck was a member of each Provincial Congress, 
 and was president of the Fourth a part of the time, and 
 senator, member of assembly, mayor of , Albany, and 
 canal and prison commissioner. Charles De M'^itt was a 
 member of the Third and Fourth Provincial Congresses, 
 and in the latter was appointed a member of the commit- 
 tee on Constitution; he was also in the first Council of 
 Safety, a delegate to the Continental Congress, and mem- 
 ber of assembly. 
 
 But the efforts of the patriots in this assembly did not 
 cease with the defeat already noted. On the i6th of Feb- 
 ruary, 1775, Colonel Philip Schuyler moved to enter on 
 the assembly journals various letters written by and to 
 the committee of correspondence theretofore appointed 
 by the assembly, including a letter from the committee to 
 
The First Constitution, iTlJ. 475 
 
 Edmund Burke, the agent of the colony at the court of 
 Great Britain ; and that these letters be published in the 
 newspapers. This motion was defeated by a vote of 9 to 
 16. 
 
 Again, on the 17th of February, 1775, Colonel Nathan- 
 iel Woodhull moved that the thanks of the assembly be 
 given to the delegates from the colony to the Continental 
 Congress, held at Philadelphia, in the months of Septem- 
 ber and October, 1774. This motion was defeated by a 
 voteof 9 to 15. 
 
 Another significant incident occurred on the 21st of 
 February, when Philip Livingston moved that the thanks 
 of the assembly be given to the merchants and other in- 
 habitants of the colony for declining to receive the im- 
 portation of goods from Great Britain, and for their firm 
 adherence to the association entered into and I'ecom- 
 mended by the "Grand Continental Congress," held the 
 previous year. The motion was lost by a vote of 10 to 
 
 15- 
 
 On the 23d of February, almost a month after the de- 
 feat of Colonel Ten Broeck's proposition, another effort 
 was made to commit the assembly to the policy of colonial 
 union. John Thomas of Westchester, who was not pres- 
 ent when Colonel Ten Broeck's motion was made, moved 
 that the sense of the assembly be taken on the necessity 
 of appointing delegates for the colony to the Continental 
 Congress, to be held on the loth of May, 1775. The 
 motion was lost by a vote of 9 to 17. 
 
 The action of the assembly on these propositions was 
 sufficient to show that nothing could be expected from 
 that body in support of the cause which so many of the 
 colonies felt must be vigorously asserted and maintained. 
 
 But the people did not wait for action by the assembly. 
 In May, 1774, the merchants of the city of New York 
 organized a committee of fifty-one members "to consult 
 
476 Constitutional History of New York. 
 
 on the measures proper to be pursued," and "to corre- 
 spond witli our sister colonies on all matters of moment." 
 This committee addressed letters to various colonies, rec- 
 ommending a general congress of representatives of the 
 colonies, to take action "for the security of our common 
 rights." This seems to have been the first suggestion for 
 such a congress. Anticipating that the other colonies 
 would accept New York's suggestion, the Committee of 
 Fifty-One recommended that delegates be chosen to the 
 proposed congress. Delegates were accordingly elected 
 by the people on the 28th of July, 1774. 
 
 The Continental Congress met at Philadelphia Sep- 
 tember 5, and, having taken the desired action for a 
 union of the colonies, the New York Committee of Fifty- 
 One felt that its purpose had been accomplished, and it 
 was dissolved in November, 1774. It was succeeded by 
 another committee, consisting of sixty members, called 
 the Committee of Inspection. This committee in Maixh, 
 1775, issued a call to the several counties in the colony 
 to elect delegates to a Provincial Convention, to be held 
 in New York on the 20th of April, 1775, for the purpose 
 of choosing delegates to represent the colony in a Con- 
 tinental Congress to be held at Philadelphia on the loth 
 of May. This convention met accordingly at the Ex- 
 change in New York, on the day appointed, and selected 
 delegates to the Continental Congress. It dissolved on 
 the 22d of April. 
 
 On the 1st of May the Committee of Sixty was in- 
 creased to one hundred, and reorganized as a Provisional 
 War Committee. This committee requested the people 
 of the several counties of the colony to elect delegates to 
 a Provincial Congress, to meet in New York on the 22d 
 of May, 1775, "to deliberate upon, and from time to time 
 to direct, such measures as may be expedient for our 
 common safety." 
 
The First Constitution, IJTJ. 477 
 
 This congress met at the time appointed at the Ex- 
 change in the city of New York. It is known as the 
 First Provincial Congress, and it became substantially 
 the successor of the Colonial Assembly, which had met 
 for the last time on the 3d of the preceding April. 
 
 This congress, on the i8th of October, ordered an 
 election of delegates by ballot, to constitute a new Pro- 
 vincial Congress, to meet November 14, 1775. The first 
 congress adjourned on the 4th of November. 
 
 The second congress was organized on the 6th of De- 
 cember, and continued its sessions at different times until 
 its final adjournment May 13, 1776. 
 
 In April, 1776, an election was held for delegates to 
 constitute a new Provincial Congress, to meet on the 
 14th of May. 
 
 The Third Provincial Congress, owing to the failure 
 of a sufficient number of members to attend, was not 
 actually organized until May 22, 1776. It continued in 
 session until June 30, 1776. 
 
 These congresses had no constitutional sanction, but 
 were expedients resorted to by the people in a great 
 emergency. The Colonial Assembly, which had existed 
 as a component and essential part of colonial government 
 for nearly a century, had been dissolved. Govern- 
 ment by the people, in the manner so positively asserted 
 in the Charter of Liberties, had apparently ceased, and 
 the rights of the people had reverted to the people them- 
 selves. It should be noted as a significant fact, evincing 
 the deepest patriotism and the most conservative self- 
 poise, that in all this trying period, from the failure of 
 real representative government in the old assembly to 
 the institution of a regular form of government under 
 the new state, there was no attempt by any committee or 
 body of patriots to usurp the recognized rights of the 
 people ; but in all cases each delegation to the Continental 
 
478 Constitutional History of New York. 
 
 Congress, and each Provincial Congress, was composed 
 of men chosen, either directly by the people, or by repre- 
 sentatives of the people elected for that specific purpose ; 
 and the government and administration of colonial 
 affairs exercised by the several Provincial Congresses 
 were strictly representative, and recognized to the fullest 
 extent the right of popular self-government. 
 
 The people, at the suggestion of a large committee 
 chosen by the people themselves at a public meeting, 
 elected the First Provincial Congress. Subsequent Pro- 
 vincial Congresses were elected by the people on the 
 recommendation of an existing congress ; and it is. worthy 
 of note that in the space of only thirteen months four 
 Provincial Congresses were elected. This shows a very 
 frequent reference to the people for authority ; and these 
 elections, occurring at short intervals, afforded the people 
 opportunity to express their views on public affairs by 
 the election of delegates to the Provincial Congresses. 
 
 A striking instance of the jealous care with which 
 popular rights were guarded, and the caution manifested 
 in working out a plan for an independent state govern- 
 ment, is shown by the action of the Third Provincial 
 Congress in May, 1776, in providing for a new congress 
 to be elected with express authority to form a new plan 
 of government. 
 
 On the i(^th of May, 1776, the Continental Congress 
 adopted a resolution recommending that the respective 
 assemblies and conventions of the United Colonies adopt 
 such government as should best conduce to the happiness 
 and safety of the people of the several colonies in par- 
 ticular, and of America in general. This resolution was 
 communicated to the colonies, and was taken up for con- 
 sideration by the New York Provincial Congress on the 
 24th of May. The journal informs us that Grt)uvemeur 
 Morris made a "long argument" on the proposition, and 
 
The First Constitution, ifjy. 479 
 
 concluded with a motion for the appointment of a com- 
 mittee "to draw up a recommendation to the people of 
 this colony for the choosing of persons to frame a gov- 
 ernment for the said colony." John Morin Scott op- 
 posed the motion in a "long argument," expressing the 
 opinion that the existing congress had power to form a 
 government, "or, at least, that it is doubtful whether 
 they have not that power;" and that therefore, in his 
 opinion, that point ought to be reserved, and a committee 
 appointed to report on that matter. Thereupon Comfort 
 Sands moved an amendment to Mr. Morris's motion, 
 providing, in substance, for the appointment of a com- 
 mittee to take into consideration the resolutions of the 
 Continental Congress on this subject, and report thereon 
 with all convenient speed. Mr. Morris made another 
 "long argument" in opposition to this motion, but it was 
 adopted, and the following committee was appointed : 
 John Morin Scott, John Haring, Henry Remsen, Francis 
 Lewis, John Jay, Jacob Cuyler, and John Broome. May 
 27th the committee made the following report : 
 
 "That your committee are of opinion that the right of 
 framing, creating, or new modeling civil government is, 
 and ought to be, in the people. 
 
 "adly. That, as the present form of government, by 
 congress and committees in this colony, originated from, 
 and so it depends on, the free and uncontrolled choice of 
 the inhabitants thereof. 
 
 "3dly. That the said form of government was insti- 
 tuted while the old form of government still subsisted, 
 and therefore is unnecessarily subject to many defects 
 which could not then be remedied by any new institu- 
 tions. 
 
 "4thly. That by the voluntary abdication of the late 
 Governor Tryon, the dissolution of our assembly for 
 want of due prorogation, and the open and unwarrant- 
 
480 Constitutional History of New York. 
 
 able hostilities committed against the persons and prop- 
 erty of the inhabitants of all the United Colonies in 
 North America, by the British fleets and arms, under the 
 authority and by the express direction and appointment 
 of the King, Lords, and Commons of Great Britain, the 
 said old form has become, ipso facto, dissolved ; whereby 
 it hath become absolutely necessary for the good people 
 of this colony to institute a new and regular form of 
 internal government and police, the, supreme legislative 
 and executive power in which should, for the present, 
 wholly reside and be within this colony, in exclusion of 
 all foreign and external power, authority, dominion, 
 jurisdiction, and pre-eminence whatsoever. 
 
 "5thly. That doubts have arisen whether this con- 
 gress are vested with sufficient authority to frame and 
 institute such new form of internal government and 
 police. 
 
 "6thly. That these doubts can and of right ought to 
 be removed by the good people of this colony only. 
 
 "7thly. That until such new form of internal police 
 and government be constitutionally established, or until 
 the expiration of the term for which this congress was 
 elected, this congress ought to continue in the full exer- 
 cise of their present authority, and in the meantime ought 
 to give the good people of each several respective county 
 of this colony full opportunity to remove the said doubts, 
 either by declaring their respective representatives in this 
 congress, in conjunction with the representatives of the 
 other counties, respectively competent for the purpose of 
 establishing such new form of internal police and gov- 
 ernment, and adding to their number, if they shall think 
 proper, or by electing others in the stead of the present 
 members, or any or either of them, and increasing (if 
 they should deem it necessary) the number of deputies 
 from each county, with the like powers as are now vested 
 
The First Constitution, ijlf. 481 
 
 in this congress, and with express authority to institute 
 and establish such new and internal form of government 
 and police as aforesaid. 
 
 "Sthly. That, therefore, this House take same order 
 to be publicly notified throughout the several counties 
 in this colony, whereby the inhabitants of each county 
 respectively, on a given day to be appointed in each of 
 them respectively by this congress, for the purpose, may, 
 by plurality of voices, either confirm their present repre- 
 sentatives respectively in this congress in their present 
 powers, and with express authority, in conjunction with 
 the representatives in this congress for the other counties, 
 to institute a new internal form of government and police 
 for this colony, and suited to the present critical emer- 
 gency, and to continue in full force and effect until a 
 future peace with Great Britain shall render the same 
 unnecessary, or elect new members for that purpose, to 
 take seats in congress in the places of those members 
 respectively who shall not be so confirmed, — the number 
 to be capable of such addition or increase in each respec- 
 tive county, as aforesaid." 
 
 On the 31st of May the Third Provincial Congress, 
 then sitting in New York, adopted the following pre- 
 amble and resolutions : 
 
 "And whereas. Doubts have arisen whether this Con- 
 gress are invested with sufficient power and authority to 
 deliberate and determine on so important a subject as the 
 necessity of erecting and constituting a new form of 
 government and internal police, to the exclusion of all 
 'foreign jurisdiction, dominion, and control whatever: 
 
 "And whereaSj It appertains, of right, solely to the 
 people of this colony to determine the said doubt: 
 Therefore 
 
 "Resolved, That it be recommended to the electors of 
 the several counties in this colony, by election in the 
 Vol. I. Const. Hist.— 31. 
 
482 Constitutional History of New York. 
 
 manner and form prescribed for the election of the 
 present congress, either to authorize (in addition to the 
 powers vested in this congress) their present deputies, 
 or others in the stead of their present deputies, or either 
 of them, to take into consideration the necessity and 
 propriety of instituting such new government as in and 
 by the said resolution of the Continental Congress is 
 described and recommended. And if the majority of the 
 counties by their deputies in Provincial Congress shall 
 be of the opinion that such new government ought to be 
 instituted and established, then to institute and establish 
 such a government as they shall deem best calculated to 
 secure the rights, liberties, and happiness of the good 
 people of this colony, and to continue in force till a future 
 peace with Great Britain shall render the same unneces- 
 sary. And 
 
 "Resolved, That the said elections in the several coun- 
 ties ought to be on such a day, and at such place or 
 places, as by the committee of each county respectively 
 shall be determined. And it is recommended to the said 
 committees to fix such early days for the elections as that 
 all the deputies to be elected have sufficient time to repair 
 to the city of New York by the second Monday in July 
 next, on which day all the said deputies ought punctually 
 to give their attendance. 
 
 "And whereas, The object of the foregoing resolu- 
 tions is of the utmost importance to the good people of 
 this colony : 
 
 "Resolved, That it be, and it is, hereby earnestly rec- 
 ommended to the committees, freeholders, and other 
 electors in the different counties of this colony, diligently 
 to carry the same into execution. 
 
 "Ordered, That the foregoing resolutions be published 
 in all public newspapers in this colony, and in handbills 
 to be distributed in the counties." 
 
The First Constitution, 1777. 483 
 
 This action shows a clear purpose to form a govern- 
 ment by a representative body of undoubted authority,, 
 and is a high illustration of wise and conservative states- 
 manship. It is quite probable that, if this third con- 
 gress had itself acted on the recommendation of the 
 Continental Congress, and had erected a state govern- 
 ment, such a government would have been accepted and 
 recognized by the people; but the delegates to this con- 
 gress had not been commissioned for such a purpose and 
 had no express authority to institute a permanent gov- 
 ernment. They therefore wisely determined to go back 
 to the people and obtain full and specific authority for 
 themselves, or other representatives, to organize a gov- 
 ernment with the very clearest title, because coming 
 directly from the people. The people did not reserve the 
 right to ratify the action of their representatives, but 
 clothed them with full authority to frame, erect, and put 
 in operation such a government as they might deem best 
 suited to the interests of the colony. The congress thus 
 chosen combined in itself and exercised the double func- 
 tion of a constitutional convention and a legislature. It 
 administered the affairs of the colony, and at the same 
 time instituted a new government with a written con- 
 stitution. 
 
 A constitutional convention is the highest representa- 
 tive body known to a free people, and may create or alter 
 the legislative department of the government. This 
 congress exercised legislative powers, and at the same 
 time instituted a new government, providing a new legis- 
 lature to succeed itself, thereby surrendering at the 
 earliest opportunity the authority which had been com- 
 mitted to it by the election held in June, 1776. 
 
 On the 30th of June, 1776, the third congress, appre- 
 hending an attack on New York by the British, adjourned 
 to White Plains, to meet there on the 2d of July, and 
 
484 Constitutional History of New York. 
 
 also directed that the fourth congress meet at the same 
 place on Monday, the 8th of July. The third congress 
 did not meet again after the 30th of June. 
 
 The Fourth Provincial Congress, which became the 
 First Constitutional Convention, met at the court house 
 in White Plains on the 9th of July, 1776. General 
 Nathaniel Woodhull was chosen president, and John 
 McKesson and Robert Benson secretaries. This was one 
 of the most important bodies that ever assembled in this 
 state. It had received a high commission from the peo- 
 ple, namely, to institute an independent government in 
 such form and with such component parts as might be 
 best suited to the genius, the spirit, and the traditions of 
 the colony. 
 
 The names of the men who so wisely and patriotically 
 performed this great duty should not be forgotten, for 
 they were the pioneers in constitutional government in 
 New York. It has not been easy to ascertain definitely 
 the names of the representatives from the different coun- 
 ties of this congress. The journal of the congress is 
 probably the best evidence of its membership, and this 
 shows, presumably with accuracy, the attendance from 
 day to day. In addition to this, local histories and other 
 publications contain the names of persons said to have 
 been representatives in the Provincial Congress at a 
 period covered by the Fourth Provincial Congress, but 
 whose names do not appear on its journal. ' 
 
 The following list contains the names of representa- 
 tives as shown by the journal, and also the names of 
 those who appear by other publications to have been 
 members of this congress. The names in brackets do 
 not appear in the journal. 
 
 Albany. — Abraham Ten Broeck (i, 2, 3) ; Robert Yates (l, 2, 3) ; 
 Leonard Gansevoort (2, 3) ; Abraham Yates, Jun. (i, 2, 3) ; John 
 
The First Constitution, lyy/. 485 
 
 Ten Broeck (3) ; John Tayler (3) ; Peter R. Livingston (2, 3) ; 
 Robert Van Rensselaer (i, 2, 3) ; Matthew Adgate (3) ; John 
 James Bleecker (2, 3); Jacob Cuyler (i, 2, 3). 
 
 Charlotte.— John Williams (i, 2, 3) ; Alexander Webster (3) ; 
 George Smith (i) ; William Duer (3). 
 
 Cumberland. — Simeon Stevens (3) ; Joseph Marsh (3) ; John 
 Sessions (3). 
 
 Dutchess. — Robert R. Livingston (3) ; Zephaniah Piatt (i, 3) ; 
 John Schenck (3) ; Jonathan Landon (i, 3) ; James Livingston 
 (3) ; Henry Schenck (2, 3) ; Nathaniel Sackett (i, 3) ; Dr. Joseph 
 Crane; Gilbert Livingston (1, 2, 3); Anthony Hoffman (1,3); 
 Cornelius Humphreys (2, 3) ; Mr. Hopkins. 
 
 [Note. — The name of Mr. Hopkins frequently appears in the journal of the Con. 
 vention, but local histories do not include him in the list of delegates. I think the 
 record kept by the secretary of the Convention justifies the inclusion of the name 
 in this list.] 
 
 Gloucester. — Jacob Bayley (3) ; Peter Olcott. 
 
 Kings. — Theodorus Polhemus (i, 2, 3) ; Nicholas Covenhoven 
 (i, 2, 3). 
 
 New York— John Jay (3) ; James Duane (3) ; John Morin Scott 
 (i. 2, 3) ; James Beekman (i, 2, 3) ; Daniel Dunscomb (3) ; Jacobus 
 Van Zandt (l, 2, 3) ; Abraham Brashier (i, 2, 3) ; [Comfort Sands] 
 (2, 3) ; Henry Remsen (3) ; Garrit Abeel (3) ; Robert Harper (3) ; 
 Philip Livingston (3) ; Francis Lewis (3) ; Anthony Rutgers (2, 
 3) ; Isaac Stoutenbergh (2, 3) ; John Van Cortlandt (i, 2, 3) ; 
 Thomas Randall (3) ; John Broome (3) ; Abraham P. Lott (3) ; 
 Peter P. Van Zandt (3) ; Evert Bancker (2, 3) ; Isaac Roosevelt 
 (i, 2, 3) ; William Denning (2, 3) ; [William Scott] ; Robert Taylor. 
 
 Orange. — William Allison (i, 2, 3) ; Henry Wisner (3) ; Jere- 
 miah Clarke (i, 2) ; Isaac Sherwood (3) ; Joshua H. Smith (3) ; 
 John Harring (i, 2, 3) ; Archibald Little (3) ; David Pye (i, 3) ; 
 Thomas Cutwater (3). 
 
 Queens. — Jonathan Lawrence (i, 3) ; Samuel Townsend (i, 3) ; 
 Cornelius Van Wyck (3) ; Waters Smith (3) ; Abraham Kettletas 
 (3) ; James Townsend (3) ; Jacob Blackwell (i, 3) ; Benjamin 
 Sands. 
 
 Richmond. — Not represented. 
 
 Suffolk.— William Smith (3) ; Thomas Tredwell (i, 2, 3) ; John 
 Sloss Hobart (i, 2, 3) ; Matthias Burnet Miller; Ezra L'Hommedieu 
 
486 Constitutional History of New York. 
 
 (I, 2, 3); Nathaniel WoodhuU (i, 2, 3); Thomas Deering (3); 
 David Gelston (2, 3) ; [David Hedges]. 
 
 [Note. — The journal of the Committee of Safety (nominally composed of mem- 
 bers of the Convention) shows that Mr. Nicoll, of Suffolk, attended, apparently as a 
 member, at the morning session on the 6th of November, 1776. I do not find his 
 name elsewhere in the journal, and am not aware of any other evidence of his 
 connection with the Convention.] 
 
 Tryon. — William Harper (3) ; Volkert Veeder (3) ; Benjamin 
 Newkirk (3) ; [George Smith] ; Isaac Paris (2, 3) ; John Moore 
 (I, 2, 3). 
 
 Ulster. — Christopher Tappen (i, 3) ; Matthew Rea (2, 3) ; Mat- 
 thew Cantine (2, 3) ; Charles De Witt (3) ; Levi Pawling (3) ; 
 Henry Wisner, Jr. (2, 3) ; George Clinton (3) ; Arthur Parks (3). 
 
 Westchester. — Pierre Van Cortlandt (2, 3) ; Gouverneur Morris 
 (ii 3) ) Gilbert Drake (2, 3) ; Lewis Graham (i, 2, 3) ; Ebenezer 
 Lockwood (2, 3) ; Lewis Morris (3) ; William Paulding (i, 2) ; 
 Samuel Haviland (3) ; .Benjamin Smith (3); Zebadiah Mills (3); 
 Jonathan Piatt (3) ; Jonathan Tompkins (3). 
 
 [Note. — According to the rough draft of the journal of the Committee of Safety, 
 Col. Gil. Budd appeared as a delegate from this county on the loth of September, 
 1776: but in the engrossed copy the name "Drake" seems to have been wrtiten 
 over the name " Budd." I do not find the latter name in any list of delegates in the 
 journal, nor in any local history. ] 
 
 The list contains one hundred seven names besides the 
 names of Mr. Nicoll and IVIr. Budd, and the names in 
 brackets. The figures in parenthesis opposite a name in- 
 dicate membership in previous congresses. Of the one 
 hundred seven actual delegates, twenty-three were mem- 
 bers of all previous congresses, thirty-six served in the 
 first congress, forty-two in the second, and ninety-eight 
 in the third, leaving only six without previous service. 
 
 The re-election of such a large number of members of 
 the third congress to the fourth was a significant ex- 
 pression of popular confidence, and indicated an intention 
 on the part of the people to clothe their representatives 
 with all the authority needed to administer the affairs of 
 the colony, and erect a new state government. 
 
 In the interval between the adjournment of the Third 
 Provincial Congress and the assembling of the fourth. 
 
The First Constitution, 1777. 487 
 
 the Continental Congress, at Philadelphia, had taken 
 the decisive step for a separation of the colonies. The 
 Declaration of Independence had been proclaimed on the 
 4th of July, and when the Fourth Provincial Congress 
 met at White Plains on the 9th, almost its first business 
 was to consider a letter received from the New York 
 delegates in the Continental Congress, transmitting a 
 copy of the Declaration. After full consideration of this 
 momentous subject, a. resolution, prepared by John Jay,, 
 was adopted unanimously, by which it was resolved "that 
 the reasons assigned by the Continental Congress for 
 declaring the United Colonies free and independent 
 states are cogent and conclusive, and that, while we 
 lament the cruel necessity which has rendered that meas- 
 ure unavoidable, we approve the same, and will, at the 
 risk of our lives and fortunes, join with the other colonies 
 in supporting it." 
 
 The next day, the loth, the Provincial Congress adopt- 
 ed the following resolution : 
 
 "Resolved and Ordered, That the style and title of 
 this House be changed from that of 'The Provincial 
 Congress of the Colony of New York,' to that of 'The 
 Convention of the Representatives of the State of New 
 York.' " 
 
 On the same day the Convention fixed the i6th inst. 
 as the time for considering the resolution of Congress 
 relative to establishing independent state governments, 
 and all the members were ordered to attend on that day. 
 
 The dual character of the functions with which this 
 Convention had been clothed, namely, to administer the 
 affairs of the state until a settled government could be 
 organized, and in the meantime prepare a suitable plan 
 for a permanent government, and the opinion entertained 
 by the Convention that a written constitution was then 
 of secondary importance, appears from the action of the 
 
488 Constitutional History of New York. 
 
 Convention on the i6th of July, the time fixed to begin 
 consideration of a plan of government, when a preamble 
 was adopted reciting that, "whereas the present danger- 
 ous situation of this state demands the unremitted atten- 
 tion of every member of this Convention," followed by 
 a resolution that "the consideration of the necessity and 
 propriety of establishing an independent civil govern- 
 ment be postponed until the ist day of August next, and 
 that in the meantime all magistrates and other officers 
 of justice in this state who are well affected to the liber- 
 ties of America be requested, until further orders, to 
 exercise their respective offices, providing that all pro- 
 cesses and other their proceedings be under the authority 
 and in the name of the state of New York." 
 
 The status of residents was declared by the additional 
 resolution that all persons abiding within the state of 
 New York, and deriving protection from the laws of the 
 same, owe allegiance to the said laws, and are members 
 of the state, and the status of transients was declared by 
 the provision that "all persons passing through, visiting, 
 or making a temporary stay in the said state, being en- 
 titled to the protection of the laws during the time of 
 such passage, visitation, or temporary stay, owe during 
 the same time allegiance thereto." Treason was defined 
 and made punishable as follows: "That all persons, 
 members of or owing allegiance to this state, as before 
 described, who shall levy war against the said state, 
 within the same, or be adherent to the King of Great 
 Britain or others the enemies of the said state within the 
 same giving to him or them aid and comfort, are guilty 
 of treason against the state, and, being thereof convicted, 
 shall suffer the pains and penalties of death." 
 
 The Convention by another resolution "earnestly rec- 
 ommended to the general committees of the counties 
 and the subcommittees of the districts of the several 
 
The First Constitution, IJJJ. 489 
 
 counties in this state immediately to apprehend and 
 secure all such persons whose going at large at this time 
 they shall deem dangerous to the liberties of this state; 
 provided always that the parties arrested by the sub- 
 committees have a right of appeal to the general county 
 committee, who may recommit or discharge them as to 
 them shall seem meet; and that the county committees 
 report the steps they have taken in consequence of this 
 resolution." These resolutions were considered by the 
 supreme court in Jackson ex dem. Russell v. White, 20 
 Johns. 313, where a doubt was expressed "whether, until 
 the adoption of our Constitution, treason could be com- 
 mitted against that imperfect and inchoate government 
 which was called into existence by the necessity of the 
 case, and was continued until the people could deliberate 
 and settle down upon a plan of government calculated to 
 secure and perpetuate their liberties." 
 
 The Convention, by these resolutions, asserted and 
 proposed to exercise the highest powers of sovereignty, 
 providing executive and judicial machinery for the en- 
 forcement of the ordinances which the Convention might 
 adopt, reserving to itself full legislative power without 
 any charter or specific commission defining the limita- 
 tions of that power, exercising authority to establish ju- 
 dicial tribunals, borrow money, create debts, maintain 
 order, prosecute the war, and at the same time, at its 
 convenience, frame a plan for a permanent state govern- 
 ment. History shows that the local committees which 
 the foregoing resolution clothed with such large admin- 
 istrative and judicial powers actually exercised such 
 powers, even to the extent of inflicting the death penalty 
 on persons charged with disloyalty. This government, 
 revolutionary in its inception and organization, self- 
 created, and irresponsible except very indirectly to the 
 people, who might overturn it and establish another in 
 
490 Constitutional History of New York. 
 
 the same way, was the highest expression of the original 
 sovereignty of a people engaged in a great struggle for 
 independence; but this new government, maintained and 
 enforced with wisdom, prudence, and self-restraint for 
 fourteen months, was not continued from any love of 
 power, but was terminated at the earliest possible mo- 
 ment; and, while more than nine months elapsed after 
 the organization of the Convention before the adoption 
 of the Constitution, they were months full of serious 
 problems requiring constant attention, and of difficulties 
 which taxed the wisdom of the patriots to its utmost 
 limit. The government, such as it was, must be main- 
 tained ; a written constitution could wait. But there was 
 no intention to postpone unreasonably the task committed 
 to the Convention by the people, and sixteen days later 
 the Convention began the great work of 
 
 Making a Constitution. 
 
 On the 1st of. August, in accordance with the resolu- 
 tion adopted on the i6th of July, Mr. Morris moved the 
 appointment of a committee to take into consideration 
 and report a plan for instituting and framing a new form 
 of government. Mr. Adgate moved that the committee 
 first prepare and report a bill of rights. After consider- 
 able debate this subject was included in the Morris reso- 
 lution, by requiring the committee also to prepare a bill 
 of rights "ascertaining and declaring the essential rights 
 and privileges of the good people of this state, as a foun- 
 dation for such form of government." The Convention 
 then appointed a committee of thirteen, consisting of 
 John Jay, John Sloss Hobart, William Smith, William 
 Duer, Gouvemeur Morris, Robert R. Livingston, John 
 Broome, John Morin Scott, Abraham Yates, Henry 
 Wisner, Sr., 'Samuel Townshend, Charles DeWitt, and 
 
The First Constitution, 1777. 491 
 
 Robert Yates. James Duane was added to the com- 
 mittee on the 28th of September. 
 
 The real character of the men who laid the founda- 
 tions of the state, the deep, but not self-sufficient, spirit 
 of patriotism that animated them, and their sincere and 
 solemn appreciation of the great task committed to them 
 could not have been more clearly shown than by the 
 resolution adopted unanimously by the Convention on 
 the 2nd of August, the next day after the appointment 
 of the committee on the Constitution, directing that the 
 27th day of August "be kept throughout this state as a 
 day of fasting, humiliation, and prayer to Almighty God 
 for the imploring of His Divine assistance in the organi- 
 zation and establishment of a form of government for 
 the security and perpetuation of the civil and religious 
 rights and liberties of mankind, and to supplicate His 
 farther protection in the war which now rages through- 
 out America." The resolution was ordered published 
 in all public newspapers throughout the state. A reso- 
 lution was also unanimously adopted providing that 
 three sermons "suitable to the occasion be preached on 
 that day before the Convention," in the church at Har- 
 lem; and Reverend Mr. Schoonmaker of Harlem, Rev- 
 erend Mr. Provoost of the county of Albany, and Rev- 
 erend Dr. Rodgers of the city of New York were selected 
 as the clergymen to perform this service. 
 
 The committee found little opportunity to write a con- 
 stitution. In addition to the urgency of public affairs 
 which demanded immediate attention, and the numerous 
 difficulties which beset the Convention on all sides, it was 
 subjected to the danger of attack and possible capture 
 by the British. To avoid this, it became necessary for 
 the Convention to move from place to place. It went 
 from White Plains to Harlem, where its sessions were 
 held in the church. It afterwards met successively at 
 
492 Constitutional History of New York. 
 
 King's Bridge, Odell's in Phillipp's Manor, Fishkill, 
 Poughkeqpsie, and finally at Kingston, where the Con- 
 stitution was adopted. 
 
 On the 1 6th of July a committee consisting of John 
 Jay, Robert Yates, Christopher Tappen, Robert R. Liv- 
 ingston, Gilbert Livingston, and William Paulding, was 
 appointed "to devise and carry into execution such meas- 
 ures as to them shall appear most effectual for obstruct- 
 ing the channel of Hudson's river or annoying the 
 enemy's ships in their navigation of the said river." 
 This committee at once began the performance of the 
 duty assigned to it, and was necessarily absent from the 
 Convention several weeks. On the 3d of August a let- 
 ter was addressed by the Convention to John Jay, Robert 
 R. Livingston, and Robert Yates, who were absent with 
 the secret committee, informing them of their appoint- 
 ment as members of the committee on a constitution, 
 requesting early action by the committee, and informing 
 them that congress would expect their attendance on the 
 26th inst., when the plan of government was expected to 
 be reported. On the 12th of August a letter was sent 
 to Livingston and Jay informing them that the Conven- 
 tion thought it highly proper that they attend on the 
 business of framing a new government, unless their 
 presence was absolutely necessary in the secret commit- 
 tee. The next day, the 13th, the Convention concluded 
 that it would be improper to call Mr. Jay and Mr. Yates 
 from the secret committee, and Mr. Livingston was ex- 
 cused from the Convention for the purpose of attending 
 that committee. On the same day, the 13th, Robert 
 Yates, chairman of the secret committee, wrote to the 
 Convention from Poughkeepsie : "Business grows upon 
 our hands, and, if Messrs. Yates, Jay, and Livingston are 
 recalled, there will not be a quorum of the committee 
 left," and expressed the opinion that the business of the 
 
The First Constitution, 1777. 493 
 
 committee would not admit of their returning to the 
 Convention by the 26th inst. The committee on plan of 
 government did not report on the 26th as directed, and 
 apparently had done nothing toward preparing a con- 
 stitution. 
 
 On the 14th of September the Convention adopted a 
 resolution directing the committee to report with all 
 convenient speed. On the 28th of September the Con- 
 vention began to show signs of impatience, and directed 
 the committee to report a plan of government on or 
 before the 12th of Octobei', "and that the said committee 
 may no longer be detained from that important busi- 
 ness: Ordered, That the said committee sit every after- 
 noon until they shall be ready to report." The com- 
 mittee did not report on the 12th. On the 14th of Oc- 
 tober Mr. Jay was appointed a member of a special com- 
 mittee to go to King's Bridge, and this, of course, pre- 
 vented him from devoting his attention to the work of 
 preparing a constitution. On the 15th of October the 
 Convention resolved itself into a committee of safety 
 under a resolution which authorized the committee to 
 do any act which the Convention might do, "except 
 forming a government." The Convention as such did 
 not meet again until the 5th of December, and during 
 this time no action could have been taken relative to 
 forming a state government, except by the committee 
 appointed for that purpose. There is no evidence that 
 the committee did anything during that interval towards 
 preparing a plan of government. The difficulties under 
 which this convention labored clearly appear from the 
 resolution of the 12th of November, notifying the com- 
 mittee of each county not in possession of the enemy that 
 the Convention are now proceeding on the business of 
 forming a system of government, and that it is necessary 
 th^t the members give their attendance without delay. 
 
494 Constitutional History of New York. 
 
 This attempt to bring in the absentees did not result in 
 materially increasing the membership of the Convention, 
 a;nd it is a fact worth noting that the work of that body 
 was usually transacted by less than one third of its mem- 
 bers. The Convention met on the 5th of December, but 
 according to the journal "the committee appointed to 
 prepare the form of government, and sundry other mem- 
 bers of the Convention having withdrawn," the re- 
 mainder proceeded to business as a committee of safety. 
 The next day the Convention met again, and, among 
 other things, ordered that the "committee on government 
 retire to consider that business." On the 12th of De- 
 cember Mr. Abraham Yates, chairman of the committee 
 on government, gave notice that the committee "will 
 report this day eight days," and requested Mr. McKes- 
 son, one of the secretaries of the Convention, to attend 
 the committee and copy its report. According to this 
 notice the report should have been presented on the 20th, 
 but on that day the report of a draft of a form of gov- 
 ernment was postponed "until to-morroW," and on the 
 2 1st there was another postponement until "Monday 
 next," the 23d, at which time Abraham Yates was given 
 a leave of absence on account of ill-health. 
 
 On the tst of March a motion by Mr. Morris directing 
 the Constitution committee to sit the next day was re- 
 jected. On the 4th the committee was ordered "to meet 
 this afternoon at 4 o'clock." On the 6th the Convention 
 adopted a resolution offered by Leonard Gansevoort 
 directing the committee on form of government to report 
 on Wednesday next. Oh the 12th, in compliance with 
 this resolution, the committee for preparing and report- 
 ing a form or plan of government brought in their re- 
 port, which, according to the journal, was read by Mr. 
 Duane in his place, and delivered in at the table where 
 the same was again read. Abraham Yates, chairman of 
 
The First Constitution, 1777. 495 
 
 the committee, was not present, neither was Mr. Jay, 
 and Mr. Duane was doubtless selected to present the 
 report because of his position as one of the recognized 
 leaders of the Convention. It was evidently the inten- 
 tion of the Convention to proceed at once to the con- 
 sideration of the proposed constitution. It rejected Mr. 
 Adgate's motion that the said plan of government lie on 
 the table four days for the perusal of the members, and 
 that they be at liberty to take copies thereof, and adopted 
 a motion by Colonel DeWitt that the proposed plan of 
 government lie on the table until the next morning, and 
 that it then be taken into consideration. But, to facili- 
 tate preparation for such consideration, it was ordered, 
 on motion of Robert R. Livingston, that "one of the 
 secretaries attend in this room at 4 o'clock this afternoon 
 with the said plan of government, and read it to any of 
 the members who shall choose to attend." 
 
 Who was the author of the first Constitution? We 
 are considering first things, and the beginnings of our 
 institutions. The first Constitution was not only an im- 
 portant document viewed as a statement of principles 
 underlying a new government, but it was a political in- 
 strument of high character, and our state to-day, with 
 all its growth and development through a century and 
 a quarter, still rests on the foundations laid by the states- 
 men of that early convention. It was a great instru- 
 ment, and embodied in concrete form great ideas and 
 great purposes. It represented political wisdom of a 
 very high order, and was a radical departure in many 
 respects from the functions and customs of government 
 with which the Convention was familiar. Its principles 
 and policies and methods of administration have proved 
 beneficent far beyond the expectations of its authors. 
 It was constructed in part from materials offered by the 
 extended political experience which many members of 
 
496 Constitutional History of New York. 
 
 the Convention possessed; but this experience was too 
 limited for the exigencies of a new and independent 
 government, and its framers were therefore compelled to 
 put into proper written form ideas intended to provide 
 methods of administration hitherto unknown; and we 
 may fairly say of the result that it expresses a political 
 inspiration bom of great genius and animated by a 
 prophetic vision which enabled the authors of the instru- 
 ment to see, beyond the words they wrote, a common- 
 wealth destined to occupy the place of primacy in a great 
 nation. If it was a "time which tried men's souls," it 
 was also a time which developed their highest talents. 
 The journal of the Convention clearly shows that several 
 members were active in suggesting provisions to be in- 
 corporated in the Constitution, but three men — John Jay, 
 Robert R. Livingston, and Gouverneur Morris — were, 
 more than all others, responsible for the instrument as 
 a whole. It has been suggested that they acted as a sub- 
 committee of the general committee on the Constitution. 
 I find no direct evidence of this, but evidence is abundant 
 that they were associated together in preparing and pro- 
 curing the adoption of many important provisions. They 
 usually, but not always, worked in harmony. They were 
 apparently congenial spirits, and held frequent consulta- 
 tions together concerning various parts of tlie instru- 
 ment. It seems equally clear that John Jay was the 
 leader of the three, and, according to his biographers, 
 he is entitled to the credit of the authorship of the first 
 draft of the instrument. On this subject his son, Wil- 
 liam Jay, in his biography of John Jay, published in 1833 
 about five years after his father's death, says that he was 
 chairman of the committee appointed to prepare a plan 
 of government, "and its duty appears to have been as- 
 signed to him;" and he also says that the draft of the 
 Constitution presented on the 12th of March was in his 
 
The First Constitution, 1777. 497 
 
 father's handwriting. I have sought diligently, but in 
 vain, for this draft. There are two drafts in the Con- 
 vention archives, but neither of them seems to be in Jay's 
 handwriting. William Jay also informs us that, "for 
 the purpose of framing the new form of government," 
 his father "retired to some place in the country ;" but the 
 place is not named. How much aid Mr. Jay received 
 from his colleagues on the committee does not appear. 
 I have noticed with sufficient detail some of the incidents 
 connected with the Convention's work which prevented 
 the early framing and consideration of the Constitution, 
 and also the items from the journal showing action by 
 the Convention and the committee on this subject prior 
 to the presentation of the proposed draft. John Jay's 
 name appears first in the list of members of the com- 
 mittee on the Constitution, and according to the modern 
 parliamentary rule he would have been its chairman. 
 But it seems to have been the practice in this Convention 
 for a committee to select its own chairman, and it ap- 
 pears from the journal that Abraham Yates was chair- 
 man of the committee, although he does not seem to 
 ■have taken any active part in framing the Constitution. 
 Probably Mr. Jay was the actual head of the committee. 
 The journal also shows, as already noted, that Mr. Mc- 
 Kesson, one of the secretaries, was asked to copy the 
 report of the committee, and I think one of the drafts is 
 in his handwriting. It also appears that the proposed 
 Constitution was presented to the Convention and read 
 by James Duane, and, according to the journal, Mr. Jay 
 was not present at that time. It is not improbable, how- 
 ever, that Mr. Jay prepared a draft of a Constitution for 
 the consideration of the committee, which was adopted, 
 and, with its approval, presented by Mr. Duane. Wil- 
 liam Jay's statement on this subject ought to be con- 
 clusive, for his father lived fifty-two years after the Con- 
 VoL. I. Const. Hist.— 32. 
 
498 Constitutional History of New York, 
 
 stitution was adopted, and the biographer had ample 
 opportunity to ascertain the facts concerning the author- 
 ship of the Constitution. I have examined other sources 
 of information, including the biographies of several of 
 Jay's colleagues, and correspondence relating to the work 
 of the Convention, but am unable to add to the infor- 
 mation furnished by William Jay and the journal of the 
 Convention. I am not disposed to dispute William Jay's 
 statement that his father was substantially the author of 
 the first Constitution. The facts disclosed by the jour- 
 nal show, I think, that other members of the committee 
 participated in preparing the report, but this participa- 
 tion is not inconsistent with the suggestion that the draft 
 on which the committee acted was written and submitted 
 by Mr. Jay. 
 
 I find among the Convention manuscripts now in the 
 State Library at Albany two papers purporting to be 
 drafts of a proposed constitution. One of these, appar- 
 ently the original, is indorsed "Dr. 1777 of Form of 
 Government." There are several addenda to this draft 
 marked for insertion at appropriate places. These are 
 evidently afterthoughts, as they involve propositions not 
 especially germane to the original provisions, but intro- 
 duce new subjects. This original draft has numerous 
 erasures, interlineations, and marginal notes, which show 
 clearly the process of evolution through which the Con- 
 stitution was passing, either during its actual considera- 
 tion by the Convention, or in private discussion among 
 the members. The other draft appears to be in many 
 respects a corrected copy of the first, embracing changes 
 indicated in the first by erasures, interlineations, and 
 marginal notes, and also containing a copy of parts of 
 the addenda to the first draft. I think this corrected 
 draft is in Mr. McKesson's handwriting. The second 
 draft also contains several paragraphs embracing new 
 
The First Constitution, 1777. 499 
 
 subjects not in the first draft or the addenda. It seems 
 clear from the journal that, while the Constitution was 
 under consideration, the discussion and the motions and 
 amendments incident to the debate related to both drafts, 
 although principally to the second, and probably for the 
 reason already suggested, — that the second draft was 
 made up from the first with corrections and additions. 
 According to the record, the first draft was presented 
 and read by Mr. Duane on the 12th of March, 1777. 
 Neither of these drafts shows who presented it, but I do 
 not think that either of them is in Mr. Jay's handwriting. 
 It should be stated, however, that Carter & Stone's edi- 
 tion of the Debates of 182 1 contains, in the appendix, 
 an article from the New York "Columbian" over the 
 signature of "Schuyler," concerning the adoption of the 
 first Constitution, in which the statement is made that 
 draft A "was chiefly or wholly drawn up by Mr. Jay, 
 and is in his handwriting." The same writer says: 
 "There were annexed to it addenda which I believe are 
 chiefly in the handwriting of Mr. Duane, and were 
 mostly framed by him." The journal does not show the 
 presentation of the second draft. It was probably pre- 
 pared arid presented informally, and, by general consent, 
 was used as the working model in constructing the Con- 
 stitution. 
 
 For the purpose of showing the evolution of the Con- 
 stitution, I have arranged both of these drafts so that the 
 reader can obtain the original suggestion concerning each 
 subject proposed to be included in the Constitution. I 
 have called the first draft "A" and the second "B," and 
 where practicable, in order to economize space, have put 
 both forms together in one section, following the practice 
 in printing legislative bills, treating "A" as the original 
 form and "B" as an amendment. Words in brackets 
 indicate parts of "A" that were excluded in "B ;" words 
 
500 Constitutional History of New York. 
 
 underscored were added in "B." This arrangement 
 presents both forms, and both the original and amend- 
 ments can be readily ascertained. The paragraphs as 
 presented contained the usual introduction, "And this 
 Convention doth further ordain, etc.," but these are 
 omitted for obvious reasons. They appear in its final 
 form, but here are not essential to show the provision 
 actually proposed or adopted. For convenience I have 
 prefixed a title to each paragraph. The votes taken dur- 
 ing the discussion of the Constitution were by counties, 
 and at the beginning of the debate Mr. Morris moved 
 "that every member who shall dissent from his county, 
 on any section or part of the said form or plan of gov- 
 ernment, have leave to enter his dissent with the reasons 
 thereof, and that such reasons be entered at length in 
 the minutes, but not published." The motion was lost 
 by a vote of ii to 22. Under the plan of voting by 
 counties the journal shows only the names of those who 
 voted in the negative. The journal shows that many 
 propositions provoked long and apparently animated de- 
 bates, but the debates were not reported, and the reasons 
 for the action of the Convention or of individvtal dele- 
 gates are not shown, except as they appear from the 
 proposed amendments and provisions effected by them, 
 with occasional brief notes by the secretary. The dis- 
 cussion on the proposed Constitution began on the day 
 of its presentation, March 12, and continued until its 
 adoption on the 20th of April. The following drafts 
 and notes show the original form in which the Consti- 
 tution was proposed and the amendments adopted, to- 
 gether with several additional paragraphs proposed in 
 the Convention. These drafts are not entered in the 
 journal of the Convention, and I think are now published 
 for the first time. In them the New York statesmen of 
 1776 present an interesting view of their impressions 
 
The First Constitution, 1777. 50.1 
 
 concerning the proper scope and form of a written con- 
 stitution. 
 
 (Territorial Limits of State.) Tiiis Convention do there- 
 fore and by the Authority of the good people of this State 
 
 ordain determine and declare ^here insert boundaries of 
 
 the State of New York ^that all the Lands and Territories 
 
 included within the Lines and Boundaries of this State do 
 belong and of Right appertain to the people and members 
 thereof. And that they will to the utmost of their power 
 maintain & defend their Title to and possession of the same, 
 against any Kingdom or State which may attempt to deprive 
 them of the same or any part thereof. 
 
 Not adopted. 
 
 I do not find any description of the state in the records 
 of the Convention, and apparently this section did not 
 receive any attention. 
 
 (People the Only Source of Authority.) A & B. That 
 no authority [whatever] shall on any pretence or [domina- 
 tion] whatever [shall] be exercised over the people or mem- 
 bers of this State but such as shall be derived from & granted 
 by them. 
 
 Adopted without change. 
 
 (Legislative Power Vested in Senate and Assembly.) 
 That [all legislative authority] the supreme legislative power 
 within this State shall be vested in two distinct and separate 
 [Bodies] Branches of men — the one to be called the General 
 Assembly of Representatives of the State of New York — 
 the other to be called the [Council] Senate of the State of 
 New York — who together shall form & be called the Legis- 
 lature of the State of New York, and meet [twice] once at 
 the least in every year for the dispatch of Business. 
 
 The words in brackets were erased in the original 
 
502 Constitutional History of New York. 
 
 and "senate," "branches" and "once" respectively sub- 
 stituted. The section appears in draft B as follows : 
 
 "They do further in the name and by the Authority of the 
 good people of this State ordain determine and declare that 
 the supreme legislative Power within this State shall be 
 vested in two distinct and separate branches of Men — ^the 
 one to be called the General Assembly of Representatives 
 of the State of New York — the other to be called the Senate 
 of the State of New York — who together shall form and be 
 called the Legislature of the State of New York, and meet 
 once at the least in every year for the dispatch of Business." 
 
 It seems clear, from the form in which this paragraph 
 was originally presented, that the draftsmen intended to 
 continue the council as a part of the legislature, thus 
 preserving the legislative system which was established 
 in the colony in 1691 and had continued without sub- 
 stantial change. This shows the tendency of the Con- 
 vention to preserve existing forms. In the original 
 draft "council" is erased and "senate" is written above 
 it, but it does not appear when this change was made. 
 It was evidently made before draft B was prepared, for 
 that draft provided for a senate, and makes no mention 
 of a council. Ten states — Connecticut, Delaware, Geor- 
 gia, Maryland, New Hampshire, New Jersey, North 
 Carolina, Pennsylvania, South Carolina, and Virginia — 
 preceded New York in adopting a constitution, and in 
 two states — ^Virginia and New Jersey — a constitution was 
 adopted before the Declaration of Independence. It may 
 fairly be presumed that the statesmen of New York were 
 familiar with the other Constitutions. The close rela- 
 tions with the states, their intimate association in a great 
 cause, the mingling of representatives of the people in 
 the army and in the Continental Congress, as well as the 
 means of communication afforded by the newspapers and 
 
The First Constitution, i^y/. 503 
 
 mails, doubtless enabled the New York Convention to 
 obtain early information of the proceedings in other 
 states. How much other Constitutions influenced the 
 action of the New York Convention, we do not know, 
 and I refer to this subject now only for the purpose of 
 calling attention to the structure of the legislature. The 
 influence of colonial conditions and experiences is mani- 
 fest in seven Constitutions, which provided for a council 
 which in some cases was vested with legislative powers, 
 and in others was limited to executive functions. In 
 three — ^Virginia, Maryland, and North Carolina — one 
 branch of the legislature was called a senate, Virginia 
 being the first to give it this name, which was done by 
 its Constitution adopted June 29, 1776. It seems clear 
 that Thomas Jefferson first suggested this name for the 
 upper branch of the legislature. While the Virginia con- 
 vention was in session, Jefferson, then being in attend- 
 ance at the Continental Congress at Philadelphia, pre- 
 pared a draft of a form of government for Virginia, and 
 sent it to Mr, Pendleton, president of the convention. 
 This draft proposed a senate to be composed of senators 
 appointed by the House of Representatives for terms of 
 nine years, one third to go out of office every three years. 
 When this proposed Constitution reached the convention 
 a plan of government was already under consideration, 
 and had been substantially agreed to in committee of the 
 whole. This plan was based on a draft prepared by 
 George Mason, in which the upper branch of the legis- 
 lature was called the "upper house" without any specific 
 designation, to be composed of twenty-four members. 
 It was too late to consider Jefferson's Constitution as a 
 whole, but his preamble was taken, and also some other 
 parts not specified, which were used in amending the 
 Mason draft. In view of the fact that the Mason draft 
 did not propose a senate, and that Jefferson's draft did. 
 
504 Constitutional History of New York, 
 
 and that the Constitution as adopted designated the 
 higher branch of the legislature the senate as suggested 
 by Jefferson, instead of an "upper house" as suggested 
 by Mason, it seems reasonably certain that during the 
 last few days of the consideration of the Constitution 
 this provision, among others, was borrowed from the 
 Jefferson draft, and became a part of the Constitution 
 as adopted. The reader will find Jefferson's draft in 
 Ford's "Writings of Thomas Jefferson," vol. 2, p. 9, and 
 Mason's in Rowland's "Life of Mason," vol. i, p. 444. 
 It is not surprising that the author of the first draft 
 presented to the New York Convention should have pro- 
 posed to continue the council, which for eighty-five years 
 had constituted a distinct branch of the colonial legis- 
 lature with full legislative powers. Whether the Con- 
 vention, in changing the designation of the highest branch 
 of the legislature from the council to senate followed the 
 three states already named, or whether, being familiar 
 with the Athenian, Spartan, and Roman senates, they 
 determined to follow the high examples of antiquity and 
 create a legislative body of great dignity and power, with 
 peculiar privileges vested in representatives chosen from 
 a select body of citizens possessing qualifications not re- 
 quired in the more popular branch of the legislature, we 
 are not informed, but it seems quite clear, from other 
 proposed provisions to which I shall presently refer, that 
 the authors of the proposed Constitution intended to 
 establish two legislative branches or orders with different 
 and very distinct qualifications. 
 
 While this section was under consideration Joshua H. 
 Smith proposed that the legislature consist of three sep- 
 arate and distinct branches, intending to add the governor 
 as the third branch, also giving the governor a negative 
 on all laws passed by the senate and assembly. While 
 this motion was pending Mr. Morris moved to add the 
 
The First Constitution, 1777. 505 
 
 following words at the end of the section: "Providing 
 that the governor shall have no power to originate or 
 amend any law, but simply to give his assent or dissent 
 thereto." The Smith amendment, as modified by Mr. 
 Morris, was adopted by a vote of 19 to 7. This made 
 the governor a distinct part of the legislature, but with- 
 out giving him any specific status in either branch. This 
 arrangement was, perhaps, suggested by the condition 
 which existed during the first half of the colonial legis- 
 lative period, when the governor sat as a member of the 
 council, voted on each bill, and also had a casting vote in 
 case of a tie, and in addition to these two votes might 
 finally veto the bill. In the chapter on the colonial period 
 I have referred to the difficulties sometimes resulting 
 from this peculiar condition and the change made in 
 1735, which deprived the governor of specific legislative 
 functions, but without disturbing his veto power. 
 
 Mr. Jay, as already stated, was not present when the 
 proposed Constitution was presented, and we do not find 
 him in the Convention until tlie 1 7th. He was evidently 
 not pleased with the Smith amendment, and on the 20th 
 gave notice that he would move its reconsideration. Two 
 weeks later the Convention retraced its steps, struck out 
 the Smith amendment, and restored the section to its 
 original form. No further change was made, except to 
 eliminate the word "general" before "assembly," which 
 was done just before the Constitution was adopted. 
 
 (Assembly, How Constituted.) A & B. That the Gen- 
 eral Assembly of Representatives of the State of New York 
 shall always hereafter consist of at least Seventy Members, 
 to be chosen in every County out of the Freeholders resident 
 therein in proportion to the number of [taxables] electors 
 in such county. 
 
5o6 Constitutional History of New York. 
 
 The Convention rejected a proposition offered by 
 General Scott, providing that each county should be en- 
 titled to representatives not less than the number it had 
 in the last session of the Colonial Assembly, and that 
 Cumberland and Gloucester should each be entitled to not ■ 
 less than two representatives, notwithstanding the erec- 
 tion of a new county. Mr. Duane proposed that the Con- 
 vention apportion the representatives among the several 
 counties. This was at first rejected, but later a committee 
 was appointed on this subject, who reported in favor of 
 an apportionment, which was accordingly made, and ap- 
 pears in § 4 as finally adopted. 
 
 (Assembly Districts.) A. That every County within this 
 State shall be divided into as many Districts by the ensuing 
 legislature as it sends Representatives containing as nearly 
 as may be an equal number of Inhabitants — which Districts 
 shall from time to Time be altered in any County when the 
 number of Representatives in such county shall be encreased 
 or diminished. 
 
 That all Elections for Representatives in general Assembly 
 be made in every district annually by Ballot in such mode 
 as the Legislature may prescribe. That every district chuse 
 one person to represent the County out of the Freeholders 
 who shall actually and in fact reside within such district; 
 and that no persons shall have a right to vote for a Repre- 
 sentative in any District but that in which he shall usually 
 and in fact reside. 
 
 Marginal Note. "Agreed that the elections for representa- 
 tives shall be by Counties at large as usual — ^but by ballot 
 out of the freeholders resident in the county for which he is 
 elected."' 
 
 This subject was not included in draft B. The Con- 
 vention does not seem to have given it any attention. It 
 suggested an important change in the plan of assembly 
 representation, but the Convention adhered to the method 
 
The First Constitution^ ^777- S07 
 
 with which the colony had been familiar since 1683, and 
 continued the plan of choosing members of assembly by 
 counties. The development of this subject will be shown 
 in subsequent chapters where it will appear that in 1847 
 — one hundred and sixty-four years after the assembly 
 was established — its members were for the first time 
 chosen by districts, and that the Convention of 1867 
 agreed to an amendment restoring county representation. 
 
 (Census; Reapportionment of Assembly.) B. And to 
 the end that the aufiA cr of Taxablcs Representation may 
 always continue equal, be it ordained that once in every 
 seven years a just account of all the Taxablcs Electors 
 resident therein be taken in every County in such manner 
 as some future Legislature shall direct. And if on such Ac- 
 count it shall appear that the number of Taxable: Electors 
 has encreased or diminished in any County one Seventieth 
 part of the whole number of Taxabko Electors now in the 
 State, the Representation of that County shall encrease or 
 diminish in the same proportion so that the Number of 
 Representatives in General Assembly shall bear as nearly 
 as may be the same proportion to the Inhabitants of this 
 state as it does at this Time. 
 
 While this section was under consideration Mr. Jay 
 moved that Richmond county should always have one 
 representative in the assembly, for the reason that it could 
 not be conveniently annexed to any other county. This 
 motion was lost by a tie vote of 18 to 18. The Conven- 
 tion also rejected Mr. Morris's motion that "no county 
 shall be left without at least one representative." 
 
 (Members of Assembly; How Chosen.) A (addendum) 
 and B. And this Convention doth further ordain that all 
 Elections for representatives in General Assembly shall be 
 made by ballot in every county out of the Freeholders per- 
 
5o8 Constitutional History of New York, 
 
 sonally residing in each respective county. That the laws 
 in force in the colony of New York for regulating elections 
 shall continue to have their full effect where they shall not 
 be repugnant to the Constitution hereby established and 
 until they shall be altered or repealed by a future legislature, 
 
 (Ballots.) And forasmuch as nothing is more essential 
 to the security of a people than the freedom of elections, and 
 it is of the utmost importance to prescribe such regulations 
 as will most effectually guard against undue Influence, Par- 
 tiality, Fraud or Corruption : This convention doth therefore 
 ordain That every future election for Representatives of the 
 State in general Assembly each elector shall vote by de- 
 livering to the sherif or returning officer a ticket tied up, 
 containing the names of the persons for whom he gives his 
 voice to be Representatives. That the sherif or returning 
 officer shall number or cause to be numbered the said ticket. 
 
 (Poll Books.) That the sworn clerk shall enter the name 
 of the elector and number of the ticket in the Poll Books, 
 and therein designate whether the Elector votes as a free- 
 man or Freeholder. 
 
 (Ballot Box.) That each ticket being thus numbered and 
 entered shall be publicly put into a locked box thro a hole 
 for that purpose, so continuing until th e 
 
 (Inspectors.) That every polling shall be thus carried on 
 in the presence of a number of reputable Inspectors. That 
 in the City and County of New York the several aldermen, 
 assistants and assessors of the different wards shall d© on 
 the day of in every year assemble at 
 
 the City Hall of the said city and there in the presence of 
 the town clerk and Chamberlain elect by Ballot sub- 
 
 stantial freeholders and residents in the said City and County 
 to be inspectors fe= of elections for representatives in General 
 Assembly, and that the supervisors and assessors of every 
 County, town, manor Burrough & precinct within this State 
 at the yearly meeting of the supervisors of each respective 
 County shall assemble together and there by ballot in the- 
 manner above directed & in the presence of the county 
 treasurer chuse substantial Freeholders and actual residents. 
 
The First Constitution, IJTJ. 509 
 
 of the places for which they shall be elected to be Inspectors 
 of election for Representatives in their respective Counties. 
 That the Ticketts at every such election for inspectors being 
 all delivered in and put into such Box as aforesaid the Key 
 of the Box shall be sealed up with the seals of supervisors 
 and assessors or a majority of them in each respective 
 County; and in the City of New York by the Aldermen as- 
 sistants and assessors or the major part of them and kept 
 by such pei-5 one of them as they or the major part of them 
 shall appoint and the box shall be lodged either with the 
 county Treasurer or Clerk of the County. That until such 
 election be made in the respective Counties the supervisors 
 in each County and the Aldermen and assistants in the City 
 of New York shall serve as Inspectors. 
 
 (Election of Inspectors.) That when any writ or precept 
 shall issue for the Election of any one or more Representa- 
 tives to serve in general assembly the Returning officer shall 
 by public notices thro the County fix and notify the day of 
 election upwards of Twenty and not more than days 
 
 from the Time of issuing such notices and shall give at least 
 sixteen days notice thereof to the County Treasurer and 
 Clerk of the County who shall forthwith notify the Super- 
 visors and assessors in each his respective county and the 
 Aldermen assistants and assessors in the City of New York 
 to assemble together at least eight days before the day of 
 Election and the Box - cont ai-n kig And w -here-as— by— the 
 
 • spcctors be elected every year. — The Ballolts for Ir.spcctcrj 
 shall be publicly opened said Electors of Inspectors being 
 thus assembled the box containing the ballotts for Inspectors 
 shall be publicly opened in the presence of the said electors 
 and the ballots being counted the names of the persons found 
 to be elected by a majority of votes to be inspectors shall by 
 the Treasurer or Qerk of the County be certified to the 
 returning officer of the City, County, Manor Burrough or 
 Township in which such election is to be held who shall im- 
 mediately notify . such inspectors respectively of their ap- 
 
510 Constitutional History of New York. 
 
 pointment and demand their attendance at the day and 
 place of election. 
 
 (Poll Clerks.) That en the fe st-4ay-el the sherif or 
 returning officer for every Election shall provide two or more 
 proper clerks of the Poll with Books for that purpose. 
 
 (Oath of Election Officers.) That on the first day of 
 each such election and before any ticket cr -ballot shall be 
 received the sheriff or returning officer, each inspector pres- 
 ent and each clerk of the polls shall be duly sworn by one 
 of the judges of the supreme court for this State or one 
 of the judges of the court of Common Picas of the County 
 in which such election shall be held not to discover the vote 
 of any elector and well and truely to perform his tlicif 
 ■ r e spectiv e duty faith during that election faithfully and im- 
 partially without fear favor of affection according to the 
 best of his skill and understanding. 
 
 (Election, How Conducted; Illiterate Voters.) That the 
 returning officer in the presence of the inspectors shall pro- 
 ceed to receive the Tickets of the electors successively as 
 they offer in the manner hereinbefore directed; and if any 
 elector should be suspected of being unable to read and it 
 shall be so found on trial by his oath or otherwise the ticket 
 of such elector shall be opened and he shall name the person 
 or persons for whom he gives his voice and if therein he 
 differs from his ticket another Ticket shall be made for him 
 agreeable to the vote he shall have given. 
 
 (Adjournments.) That when any such Election shall for 
 a Representative or Representatives shall have begun the 
 poll shall not be adjourned without the consent of at least a 
 majority of the Inspectors present. 
 
 (Challenge.) That any Inspector at such Election may 
 put or cause to be put to any suspected Elector the oath re- 
 quired in such cases by the present laws of this State; and 
 the ticket of such Elector shall either be rejected or put into 
 the box as the major part of the Inspectors shall determine 
 thereon. That when any [!I!cctoi Inspector shall doubt of 
 the validity of the vote of any Elector he shall cause a 
 minute to be affixed to his name in the poll Books and after 
 
The First Constitution, lyyj. 511 
 
 any such election at the request of any Candidate or In- 
 spector a list of all such names certified by the returning 
 officer on his oath of office shall be made public and delivered 
 to such candidate or Inspector for the purpose of a scrutiny ; 
 but for whom such Elector gave his voice shall not be 
 divulged until the time and in the manner hereafter men- 
 tioned. 
 
 (Canvass.) That when the poll at any such Election shall 
 be finally closed all the poll Books shall be immediately 
 sealed up; and the Tickets shall be successively drawn out 
 of the Box and opened in a public manner in the presence of 
 the Inspectors or a major part of them ss4 the returning 
 officer and sworn clerks of the poll and discovery made by 
 entering the Tickets successively in a Book who has the 
 majority of Votes; and the said Tickets then respectively 
 rolled up put into a Box locked up with the said Poll Books 
 and the key thereof sealed up with the seals of the said 
 returning officer Inspectors or a major part of them. And if 
 upon opening the Tickets more than one shall be found to 
 have been rolled up and included under one string they shall 
 be rejected as void. 
 
 (Certificate of Result.) That the returning officer shall 
 then prepare execute and cause to be executed and returned 
 to the secretary of state proper Indentures of the person or 
 persons elected for Representative or Representatives by a 
 majority of votes taken in manner aforesaid. 
 
 (Assembly; Contested Elections; Examination of Bal- 
 lots.) And this convention doth farther ordain that when 
 the House of Representatives shall have allowed a scrutiny 
 as to the seat of any Member the returning officer shall on 
 notice thereof deliver to the Clerk of the General Assembly 
 the Box containing the sealed poll Books and Tickets with 
 the Key or Keys thereof sealed up with his -the said return 
 in manner aforesaid. And when it shall be adjudged 
 that any person who polled as an Elector had not a right 
 to vote, the poll Books shall be opened and the Ticket of 
 such Elector person untied and discovery made for whom 
 he voted. And when all the votes first adjudged to be 
 
512 Constitutional History of New York, 
 
 illegal are discovered to the House General Assembly, the 
 other Ticketts shall without examination be burnt in the 
 Assembly Chamber while the speaker is in the chair. 
 
 (When Poll Books and Tickets to be Destroyed.) And 
 in Case no scrutiny shall be demanded within forty days 
 after the first meeting of any General Assembly at their 
 stated times of meeting or on public summons the returning 
 officer of each election shall cause the poll Books and Ticketts 
 (after public notice thereof given) to be burnt, in the city 
 of New York in the presence of the Aldermen or a major 
 part of them and each other City, County, Manor, Burrough 
 or Town having a Representation, in the presence of the 
 supervisors or a major part of them at their next meeting 
 after the expiration of the said forty days. 
 
 (Appointment of Inspectors to Fill Vacancies.) And in 
 case of the decease or necessary absence of any Inspector 
 at the time of any such election that the returning officer 
 shall summon the Supervisor living nearest to the place 
 of residence of such absent Inspector whose duty it shall 
 be to attend such election in the place of such Absent In- 
 spector. 
 
 The expense of the wages of clerks at sUch Election and 
 of Boxes and Poll Books shall be defrayed by the inhabitants 
 of the district having a right to vole for which such election 
 shall have been held, to be assessed and raised as the other 
 County or public charges of such district. 
 
 A ...1. — fcilL j_.»- tre foil — ±Oa XV^.jJ^ k^J.i^^A^u.c. . v^il. STTCCn CtC TjJ CXTC 
 
 l^cldcr^ rccidcnt in the CG""'i''tv •^^i* ""lii~li li" ic elected. 
 
 The foregoing appears in the draft as one solid section, 
 but for convenience of reference I have arranged it in 
 paragraphs with appropriate headings. It will be ob- 
 served that this scheme is quite like the modern election 
 law, but the Convention was not prepared to adopt it, and 
 apparently did not seriously consider it. While it was 
 under consideration the provision for an election by ballot 
 was, on motion of Mr. Morris, stricken out, and elections 
 
The First Constitution, 1777. 513 
 
 were required to be held according to the laws of the 
 colony. April 5th, Mr. Jay offered the following substi- 
 tute for the section : 
 
 "And whereas it hath been a prevailing opinion among the 
 good people of this State, that the mode of election by ballot 
 would tend more to preserve the liberty and equal freedom 
 of the people than the manner of voting viva voce, and it is 
 expedient that a fair experiment be made as to which of 
 those methods of voting is to be preferred : 
 
 "Be it ordained, That as soon as may be after the expira- 
 tion of the present war between the United States of Amer- 
 ica and Great Britain, an act or acts be passed by the Legis- 
 lature of this State for causing all elections hereafter to be 
 held in this State for senators and representatives in as- 
 sembly to be by ballot and directing the manner in which 
 the same shall be conducted. 
 
 "Be it further Ordained, That whenever thereafter the 
 mode of voting by ballot, shall, on experience, appear to be 
 attended with more mischief and less conducive to the safety 
 or interests of this State than the method of voting viva voce, 
 it shall be lawful and constitutional for the legislature of 
 this State to abolish the same, providing two thirds of the 
 members present in both houses shall concur therein; and 
 further, that in the meantime all elections for senators and 
 representatives in assembly be made viva voce, according 
 to the laws of the colony of New York for regulating elec- 
 tions so far as the same may be consistent with this consti- 
 tution or according to such laws as by the legislature of this 
 state may for that purpose be enacted." 
 
 The Convention unanimously rejected Mr. Morris's 
 motion to strike out the word "senators" whenever it 
 occurred, so that the section would apply only to mem- 
 bers of assembly. Gilbert Livingston's motion to strike 
 out the proviso requiring a two-thirds vote of the legis- 
 lature to restore voting viva voce was also rejected. The 
 
 Vol. I. Const. Hist.— 33. 
 
514 Constitutional History of New York, 
 
 section was adopted by a vote of 33 to 3. On the 20th, 
 of April, the last day of the consideration of the Consti- 
 tution, Mr. Yates moved to strike out the provision 
 authorizing the legislature, after an experiment in voting 
 by ballot, to restore viva voce voting, but the Convention 
 ' was unwilling to change the section, and a motion for the 
 previous question was carried by a vote of 18 to 12, 
 which, by the rule then in force, precluded any vote on 
 the Yates motion. 
 
 (Qualifications of Electors of Members of Assembly.) 
 A & B. That every male Inhabitant of this State of & above 
 the Age of Twenty-one years shall have a right to vote for 
 Representatives in General Assembly in the [district] c ounty 
 in which he or they [actually] personally resides. Provided 
 that he is a Freeholder in the County, or that he has resided 
 therein for one year immediately preceding the said election 
 and has been rated and actually paid [both] public [and], 
 or County Taxes in the said County [within the said year], 
 at least one year before the day of such election . 
 
 It will be observed that, under the original section, a. 
 voter must have been a freeholder, or must have resided 
 in the county a year and paid both public and county 
 taxes. The owner of taxed personal property would have 
 been a voter under this provision, but the scope of the 
 section was materially limited by several amendments, a- 
 One offered by R. R. Livingston required a nonfreeholder 
 to be, not only a resident, but to have rented a tenement, 
 which was further modified on motion of Mr. Tredwell 
 by requiring the tenement to be of the yearly value of 
 40s. ; and the Convention also, by a vote of 18 to 12, 
 adopted an ainendment offered by Mr. Morris that the 
 freehold owned by a voter must be worth £20. These 
 amendments limited the qualifications of voters to owners. 
 or lessees of real property. The Convention adopted 
 
The First Constitution, J777. 515 
 
 Philip Livingston's amendment reducing the required 
 residence from one year to six months. Freemen in the 
 cities of Albany and New York had been entitled to vote 
 for members of assembly since 1691. Those who were 
 not owners or lessees of real property would have been 
 disfranchised under the foregoing amended section. To 
 avoid this result Mr. Jay offered an amendment which 
 was accepted, preserving the right of suffrage to persons 
 who were then freemen in Albany, or who became free- 
 men in New York on or before October 14, 1775. 
 
 (Voters' Oath of Allegiance.) A & B. That every elector 
 shall if required [by any person having a Right to Vote] 
 the returning officer or either of the election inspectors take 
 an Oath, or if of the People called Quakers an Affirmation 
 of Allegiance to the State. 
 
 Adopted without amendment. 
 
 (Powers of Assembly; Quorum.) A. That the General 
 Assembly thus Constituted shall chuse their own Speaker, 
 be judges of their own Members and proceed in doing Busi- 
 ness in like manner as the former Assemblies of the Colony 
 of New York did and that forty of the Members be 
 
 a Quorum, which Quorum shall hereafter consist of an 
 additional number in proportion to the additional number of 
 representatives "which the legislature may in future direct." 
 
 B. That the General Assembly thus constituted shall 
 chuse their own speaker, be judges of their own members, 
 and proceed in doing business in like manner as the former 
 Assemblies of the Colony of New York did ; and that forty 
 of the members shall constitute a House sufficient to proceed 
 on Business; which number shall hereafter be encreased in 
 proportion as nearly as possible to the additional number of 
 Representatives which the Legislature may in future digest 
 provide. 
 
5i6 Constitutional History j}f New York. 
 
 This section was amended by adding after the word 
 "members" the words "enjoy the same privileges," and 
 after "New York" the words "of right." On motion of 
 Mr. Morris all of the section after "did" was stricken out, 
 and the following substituted, "and that a majority of 
 the said members shall from time to time constitute a 
 House sufficient to proceed upon business." 
 
 (Senate, How Constituted.) A. And this Convention do 
 further ordain determine and declare t-hat-4fee-Bufthrajr-ef 
 
 pn-na pall^ - on the ficchGldcrs thcrcof -aad-therefsre-that-the}-- 
 ef— fight— e ught tc have an asc c ndan €5?-i-n-4h^^I,egislat-ure 
 Wh crcfcr this ■ ccuvcr.ticn 'do orda -ia-that That the eown-eii 
 senate of the State of New York shall consist of Twen ty f ou ? 
 wise and discreet freeholders (marg. note, "to be chosen 
 out of the Body of Freeholders") -and that they be chosen 
 only by the Freeholders of this State, possessed of freeholds 
 of the Value of £40 over and above all debts and incum- 
 brances thereon. 
 
 That the said eeuseil senate be vested as aforesaid with 
 legislative authority, and ivith that the Assent of the said 
 ee uncil senate and General Assembly be essential to the 
 enaction of Laws binding on the people of this State. 
 
 B. That the senate of the State of New York shall con- 
 sist of Twenty-four ^vise— afidr-di-s-«=eet freeholders to be 
 chosen out of the body of the Freeholders. And that they 
 be chosen &^ by the freeholders of this State possessed of 
 Freeholds of the value of fopty one hundred pounds over 
 and above all Debts and Incumbrances thereon. 
 
 That the said Senate be vested as aforesaid with Legis- 
 lative authority and that the assent of the said senate and 
 General Assembly be essential to the enacting of laws 
 binding on the people of this State. 
 
 The Convention rejected Robert Harper's motion to 
 strike out the property qualification in draft B. On Mr. 
 
The First Constitution, i^TT- 517 
 
 Jay's motion the word "charges" was substituted for 
 "incumbrances." As finally adopted no property limit was 
 fixed for senators, but they were required to be free- 
 holders without regard to the value of the freehold owned 
 by them; but they could be voted for only by persons 
 owning a freehold worth £100 over and above all debts 
 charged thereon. This required a much higher qualifica- 
 tion for voters than for candidates. 
 
 (Senators, Term and Classification.) A. That the mem- 
 bers of the ee uncil senate be elected for four years. That 
 immediately after the first Election they be divided by Ballott 
 into four classes, four in each class, and numbered, i, 2, 3, 4. 
 That the members of the first class vacate their seats at the 
 Expiration of the first year, the Second Class the second 
 year, and so on till a compleat rotation be had. Hence it 
 will happen that after first Election C ouns eBerS senators will 
 annually be chosen. 
 
 B. That the members of the Senate be elected for four 
 Q¥i& years. That immediately after the first election they be 
 divided by ballot - lot in four classes fe^*? six in each class 
 and numbered i, 2, 3, 4. That the seats of the members of 
 the first Class shall be vacated their seats at the expiration 
 of the first year, of the second Class the second year, and 
 so on till a compleat rotation be had. 
 
 According to the journal William Harper's motion to 
 reduce the senatorial term from four years to one year 
 was rejected "by a great majority." Draft B was sub- 
 stantially adopted, providing for a senate of twenty-four 
 members divided into four classes with six in each class. 
 
 (Senators, How Chosen.) A. The election of Coun - 
 sellors senators shall be after this manner : 
 
 The convention do ordain that this State be divided into 
 four great districts of extent as near as may be to the num- 
 ber of Freeholders in this State and shall be extended or 
 
5i8 Constitutional History of New York. 
 
 diminished in future as the number of Freeholders in them 
 may encrease or diminish. That the several Counties of 
 which each of the said great districts shall be composed do 
 obtain the voices of their respective Freeholders for Coun- 
 sellors in like manner and at the same time as for Repre- 
 sentatives, and the County Clerks of each of the said 
 Counties after receiving all the Ballotts of their little dis- 
 tricts, shall together with two of the judges of the said 
 respective counties meet at a place for that purpose to be 
 by the legislature appointed and there examine the said 
 Ballotts & the Judges aforesaid shall certify upon Oath to 
 the Council the names of the Counsellors for that District 
 for whom a plurality of voices shall appear. 
 
 And this convention do ordain that no free^iolder shall be 
 eligible to the office of cour.ccllor senator in any other of the 
 great districts than the one in which he shall usually and in 
 Fact reside nor shall any Freeholder vote for counccllGis 
 senators in any other than the little District in which he 
 shall usually and in fact reside — nor shall any Freeholder 
 be capable of voting for a Counsellor, or be eligible to that 
 office unless he shall previously have taken an oath of 
 Allegiance to this State and abjured all foreign authority 
 whatsoever . 
 
 This paragraph was repeated in B, but seems to have 
 been erased and the second paragraph below substituted 
 for it as a marginal note. 
 
 A. (Addendum.) And this convention doth further 
 ordain that the Election of Senators shall be after this 
 manner. The Freeholders of each respective County within 
 this State qualified to vote as aforesaid shall at every Elec- 
 tion of Representatives in General Assembly also chuse by 
 Ballot dou ble the numb ey-ef-JPFee holdcrs oth er wise and 
 discreet Freeholders double in number to the Representatives 
 in General Assembly for their respective Counties Who shall 
 te called Deputies for electing the Senate, but no Repre- 
 sentative in General Assembly shall be eligible to the office 
 
TJie First Cotistitution, ITJJ. 519 
 
 of Deputy ; and if it shall so happen that the Person chosen 
 to be a representative shall at the same time have the greatest 
 number of Suffrages as Deputy then he who shall have the 
 next and greatest number not being a Representative in 
 General Assembly shall be the Deputy. And this Conven- 
 tion doth further ordain tliat the Deputies being so chosen 
 shall within days thereafter assemble at the Court 
 
 House in or at such otlier place as shall hereafter 
 
 be appointed by the Legislature and tlien proceed by Ballot 
 and a majority of the Suffrages to elect the said twenty-four 
 Senators, eighty-one of the said Deputies being always 
 necessarjf to constitute a quorum and in order that tlie 
 Representatives of the People in both Branches of the Legis- 
 lature maj' be equal the Senators shall be taken out of the 
 respective Cities and Counties in the proportion and manner 
 following that is to say: From the Citj' and County of 
 Albanj' , from the Count}' of Suffolk , from 
 
 the County of Lister , from the County of Dutch- 
 
 ess , from the count\' of Westchester , from 
 
 Queens County , from Kings County , from 
 
 Orange County , from Richmond County , from 
 
 Tr\-on County , from Charlotte County , from 
 
 Gloucester Coimty . -\iid tliis Convention -d o th ordaia 
 
 Ficcfcoldcrs pcrsoi::J!7 residing shall be chosen out of tli e- 
 - Coucticn at all times: be chosen o at-of=4Ji e Frcdioldcrs 
 actually -■and personally residing . 
 
 Bu t after ■ccnfcrring on the D epute s - a -free conference 
 f e apccting the persons ^ird^hcrc p resse d by B 3l!9t-48^ect- 
 l£c said tycntj four senators by a ni a|ori^=— e f suffrages 
 dght'." one incn^bcn: being ncccrrar^r . 
 
 And this Convention doth ordain that the Election of 
 Senators shall be conducted in the presence of the Chancellor 
 br era two of the Judges of the Supreme Court who shall 
 make a return of such Election iT^to-the^Tiancer)' under tlidr 
 hands and Seals into the Chancery where it shall remain 
 until the succeeding meeting of the Legislature when the 
 Chancellor or in case of his Death Sickness or Absence the 
 
520 Constitutional History of New York. 
 
 Master of the Rolls shall . attend with the same in the House 
 of Assembly in whose presence each of the Senators shall 
 be duly qualified according to the Direction of this Constitu- 
 tion or of a future Legislature. And this Convention doth 
 further ordain that Annually after the said first Electioh of 
 Senators the Deputies for electing Senators shall in the same 
 manner chuse Senators to succeed those who shall from 
 time to time die remove resign or be displaced or who agree- 
 able to the Rotation hereby established shall vacate their 
 seats observing as an invariable Rule that the Senator chosen 
 to supply any Vacancy shall be taken out of the County in 
 which the Senator to whom he may be appointed to succeed 
 personally resided. And this Convention doth further ordain 
 that whenever a new County shall by Act of the Legislature 
 be established and entitled to a Representative in General 
 Assembly of members an additional Senator shall be elected 
 out of such County in the same manner in all respects as 
 other Senators are hereby directed to be chosen. And this 
 convention doth further ordain that the Senators shall Be 
 eligible out of the Body of the Deputies or out of the Repre- 
 sentatives in General Assembly or the body of Freeholders 
 of the respective Counties. 
 
 This scheme apparently received no attention in the 
 Convention. The idea seems to have been borrowed from 
 the Maryland Constitution, which provided for the elec- 
 tion of two delegates from each county, who were known 
 as "electors of the senate." They were required to meet 
 at the seat of government once in five years and choose 
 fifteen senators. Both of these plans suggest the prin- 
 ciple embraced in the method of choosing the President 
 by electors, afterwards included in the Federal Constitu- 
 tion. 
 
 B. Marg. note. The election of Senators shall be after 
 this manner. The state shall be divided into four great 
 Districts ; the Southern District to comprehend the City and 
 
The First Constitution, 1777. 521 
 
 County of New York, Suffolk, Westchester, Queens, Kings, 
 and Richmond Counties. The Middle District to compre- 
 hend the Counties of Dutchess, Ulster and Orange. The 
 Western District, city and county of Albany and Tryon 
 county and the Eastern District the Counties of Charlotte, 
 Cumberland and Gloucester. That the FixchGldci's Sena- 
 tors shall be elected by the Freeholders of the said Districts 
 qualified as before described in the proportions following: 
 in the Southern District nine; the Middle District six; the 
 Western District six and the Eastern District Three. That 
 wheneve? the number of Electors within any of the said 
 Districts shall have increased one thousand which is exti- 
 mated to be one-twenty-fourth part of the whole number of 
 Electors now in this State an additional senator shall be 
 chosen v.'ithin by ^v.ch the electors of such District, (and 
 this rule shall be always observed whenever such an aug- 
 mentation of Electors in any of the said Districts shall hap- 
 pen.) That thirteen members shall be necessary to constitute 
 a 'senate capa sufficient to proceed upon Business ; and that 
 the senate shall be the judge of its own members and chal l 
 ■ have power 
 
 It seems from the journal that this paragraph was the 
 only one on this subject considered by the Convention. 
 Mr. Wisner proposed to increase the number of districts 
 from four to fourteen, and to strike out the word "great," 
 so that senators might be chosen by counties. This was 
 the North Carolina plan of senate representation, but the 
 journal tells us that it was rejected "by a great majority." 
 The proposition by Robert Yates to divide the state into 
 five districts instead of four received only three affirma- 
 tive votes. The quorum was changed from thirteen to a 
 majority, probably in view of the provision for additional 
 senators under subsequent reapportionments. It will be 
 observed that the section estimates the number of free- 
 holders at 24,000, and provided for an additional senator 
 for each additional one thousand freeholders. This was 
 
522 Constitutional History of New York. 
 
 changed on motion of Mr. Morris by striking out the 
 one thousand ratio, and providing for an additional sen- 
 ator on every increase of one twenty-fourth of the electors 
 as shown by the latest enumeration. R. R. Livingston 
 moved that, as soon as practicable after the close of the 
 war, a census be taken, and the senate reapportioned on 
 the basis of such enumeration. The Convention adopted 
 an amendment offered by Philip Livingston that the 
 census be taken seven years "after the close of the present 
 war," and as thus modified the provision was included in 
 § 12 as finally adopted. 
 
 (Political Rights Limited by Legislature Only.) A & 
 B. That no person shall be disqualified to vote or to be 
 elected, who is or shall be qualified in the manner herein 
 described, unless by act of the Legislature of this State, any 
 separate vote or resolution of either House notwithstanding 
 who shall never by their votes create any such disqualifica- 
 tions, the people in this State being only fully represented 
 in the whole Legislature ; and consequently not to be other- 
 wise bound than by acts of the whole Legislature. 
 
 Gilbert Livingston offered the following substitute for 
 this section : 
 
 "That no member of this state shall be disfranchised 
 or deprived of any of the rights or privileges secured 
 to the subjects of this state by this Constitution unless 
 by the law of the land and the judgment of his peers." 
 
 This was, in substance, the famous 39th Article of 
 Magna Charta, and with the substitution of "or" for 
 "and" in the last line, which was made on the motion of 
 General Scott, the section was adopted, and has since 
 been included in all our Constitutions, and, beginning 
 with 1846, each Constitution has opened with this declara- 
 tion of the citizen's rights. 
 
The First Constitution, lyjy. 523 
 
 (Adjournments.) A. That neither the General Assembly 
 of Representatives of the State of New Yorlc nor the council 
 Senate of the State of New York shall respectively have 
 power (marg. note, "to adjourn except from day to day 
 -without the mutual consent of both Houses"). 
 
 B. That neither the General Assembly of Representatives 
 of the State of New York, nor the Senate of the State of 
 New York shall have power to adjourn for any longer time 
 ■than two days except from -day to - da y without the mutual 
 consent of both Houses. 
 
 Form B was, in substance, adopted, and appears as 
 § 14- 
 
 (Conference of the Two Houses.) A. That whenever 
 the two Houses disagree a Conference shall be held in the 
 presence of both Houses and be managed by committees to 
 be chosen by them respectively chosen by Ballot, and that 
 the doors of both Houses shall be open to all Persons except 
 when the welfare of the State shall require their Debates to 
 be kept secret and that both Hous es the journals of the pro- 
 ceedings of both Houses shall be gtiblish^d^ ^'cckly kept in 
 the manner heretofore accustomed by the general assembly 
 i n thic State and weekly published. To sit on-t jte 
 Sr-pfevided-'theT^-e 
 
 3&s-be^giade-b^- the a-sseRt-ef-beth-H&as cs but a st 
 a -longer term-than Six Months. 
 
 B. That whenever the two Houses disagree a Conference 
 shall be held in the presence of both Houses and be managed 
 by Committees to be by them respectively chosen by Ballot ; 
 and that the doors of both Houses shall be Trep* open to all 
 persons, except when the welfare of the state shall require 
 their debates to be kept secret. And the journals of the 
 proceedings of both Houses shall be Kept in the manner 
 heretofore accustomed by the General Assembly and except 
 in the case aforesaid weekly published. 
 
 Both forms are quite similar, but draft B seems to have 
 been used in the discussion. After an amendment by Mr. 
 
524 Constitutional History of New York. 
 
 Jay giving the legislature discretion concerning the pub- 
 lication of its proceedings, and another by General Scott 
 providing for a daily, instead of weekly, publication of 
 such proceedings, the section was adopted and became 
 §15- 
 
 (Senate and Assembly, Number of Members.) B. Pro- 
 vided that the number of Senators shall never exceed 100 
 nor the Representatives in Assembly 300, and that whenever 
 the number of Senators shall amount to 100 or the Repre- 
 sentatives to 300 that then and in such case the Legislature 
 shall have it in their power by law to settle from time to time 
 the representation of this State in either of both Houses in 
 such manner as will be most just and equal. 
 
 Draft B also contained the following provision as a 
 marginal note, but which was apparently erased, and the 
 foregoing provision substituted : 
 
 "That when the Senate of this State shall amount to one 
 hundred members and the assembly shall consist of more 
 than 500 Representatives a general convention of this State 
 shall be convened in order to limit the number of members 
 in either house to settle a just and equal representation of 
 this state in the future." 
 
 The Convention rejected a substitute proposed by Gen- 
 eral Scott providing that on an increase of members in 
 either house the proportion as established by the Consti- 
 tution be continued without any reduction in the relative 
 number. An amendment proposed by Mr. Jay was 
 adopted, providing for an apportionment whenever the 
 number of senators or members of assembly reached the 
 constitutional limit. This provision appears at the end 
 of § 16 as adopted. 
 
 (Executive.) A. And this convention doth further 
 ordain' feat-^hat-supreme-ex 
 
The First Constitution, 1777. 525 
 
 in-ar-Gs^-efHeF-aHd-CQunGil-ef-State that a wise & discreet 
 freeholder of this State be elected Governor by Ballot by 
 the Freeholders of this State qualified as above to elect 
 ■?eHHS€lte?tr senators. 
 
 A. (Addendum.) That the supreme executive power 
 shall be vested in a Governor and Council of State (marg. 
 note, "aad-a s often as the ofiicc cf gcYcrncr shall b e va -saat 
 
 t bJ.xv., i^Zit^iX^ Lxlixv^ lii.^\^ L/iij.^^ ^ jL X J.v,V.,i,Aii.^ i. v,t> J. CJiCiii-cli.* » v*0 J.^A 
 
 Qsr.sra! asscir.bly that statedly once in every four years and 
 as often as the seat of government shall become vacant") 
 a wise and discreet Freeholder of this State shall be by 
 Ballot elected Governor by the Freeholders, of this State 
 qualified as before described to elect Senators (marg. note, 
 "which election shall be always held at the times and places 
 of choosing the Representatives in General Assembly for 
 each respective County.") 
 
 B. That the ■ s'.iprcir.c executive power and authority of 
 this State shall be vested in a Governor and Council of State. 
 That statedly once in every four years and as often as the 
 seat of government shall. become vacant a wise and discreet 
 Freeholder of this State shall be by ballot elected Governor 
 by the Freeholders of this State qualified as before described 
 to elect Senators ; which elections shall be always held at the 
 Times and places of choosing the Representatives in General 
 Assembly, for each respective County. 
 
 Draft B and the addendum to A are similar in principle. 
 Both contemplate executive powers to be shared by the 
 governor and a council, and both manifest an intention 
 to deny the governor exclusive executive authority. The 
 experience with the colonial governors was not calculated 
 to induce the men who framed the Constitution to 
 vest him with any considerable unrestrained authority. 
 This is manifest, not only from these proposed provisions, 
 but also from several others which will be considered in 
 notes to subsequent sections. On motion of General 
 Scott "supreme" was inserted before "executive," and, 
 
526 Constitutional History of New York, 
 
 on motion of Mr. Adgate, the term of office was reduced 
 from four years to three. As thus amended, draft A was 
 adopted and appears as § 17. 
 
 (Governor, Term of Office.) A. That he shall ^ ex officia 
 be a member and president of the council of the stato State 
 to be formed in the manner & for the purposes hereafter pre- 
 scribed. That the governor so to be elected continue in office 
 four years and have power to convene the legislature on 
 extraordinary occasions. That he be general of the militia 
 of this State and have power with the advice of the Council 
 of State to grant Repriefs and Pardons except in cases: cf 
 Treasor, for Treason & Murder in which cases he shall have 
 power with the advice of the Council of State to suspend 
 execution till the subsequent sessions of the legislature. 
 
 A. (Addendum.) That he shall continue in Office four 
 years and shall ex officio be Captain General and Com- 
 mander in Chief of all the militia and the navy and High 
 Admiral of the Navy of this State (marg. note, "and preside- 
 at the Council of State") that he shall have Power with 
 the advice of the Council of State to convene the General 
 Assembly and Senate on extraordinary occasions and to 
 grant Repriefs and Pardons except for Treason and Murder 
 in which cases he may with the advice of the Council of 
 State suspend the Execution of the Sentence until it shall, 
 be reported to the Legislature at their s^?r~ Subsequent 
 meeting and they shall either Pardon or direct the Execution 
 of the criminal (marg. note, "or grant a further Reprief").. 
 
 B. That he shall continue in office four years and shall 
 ex officio be by virtue of his office Captain General and Com- 
 mander in Chief of all the militia and High Admiral of the 
 navy of this State and preside at the Council of State . That 
 he shall have power with the advice -of the Council-of St at-s 
 4e convene the General Assembly and Senate on extraordi- 
 nary occasions to prorogue them for -any -time-not exceeding 
 si-^rty days (marg. note, "to prorogue them from time to 
 time provided such prorogation shall not exceed sixty days 
 in the space of any one year. And upon the Recommendatioa 
 
The First Constitution, 17J7. 527 
 
 of the Judges or Court before whom the criminal shall have 
 been tried at his Discretion CYccpl: to grant reprieves and 
 pardons except in cases of" [marg, note ends]). And to 
 g-ar.t rcpr-cvci: and pardons except for Treason and Murder 
 in which cases he may -y-'-h the advice of the rci '.nci! of 
 State suspend the execution of the sentence until it shall be 
 reported to the Legislature at their subsequent meeting ; and 
 they shall either pardon or direct the execution of the Crim- 
 inal, or grant a further Reprieve. 
 
 In draft A we again discover the council of state, show- 
 ing an evident intention to limit the powers of the gov- 
 ernor. Mr. Tredwell objected to the governor's power 
 to prorogue the legislature, but the Convention declined 
 to strike it out. Draft B, with some verbal modifications, 
 was adopted and appears as § 18. 
 
 (Governor, Duties of.) A. And that it shall be his duty 
 at every session of the Legislature to inform them of his 
 proceedings, and of the Condition of the State so far as may 
 respect his department. And further that he shall be liable 
 to be impeached for Mai & Corrupt Conduct in his office by 
 the General Assembly provided three-fourths of the members 
 present agree to such impeachment and that the :aid Iir. 
 ig^ ichments shall -be tried by the co"r.c:!' sonatc with the 
 dSjistancc of in conjtmctior! w'th the chariccllor and judges 
 of the supreme cor:rt, agreeable tc r.::h la-.vc as shall b> the 
 
 A, (Addendum.) That it shall be the duty of the Gov- 
 ernor to inform the Legislature at every Session of his pro- 
 ceedings and of the Condition of the State so far as may 
 respect his Department and to recommend such matters to 
 their Consideration as shal! appear "to hi-.r. v.'ith the advice 
 cf the Cctincil- cf Stale to concern its good Government 
 Welfare and Prosperity. And also to correspond with the 
 Continental Congress and other States; transact all neces- 
 sary Business with the Officers of Government civil and 
 military; to take Care that the Laws are faithfully executed 
 
528 Constitutional History of New York. 
 
 and to expedite all such measures as may be resolved upon 
 by the Legislature. That he shall also have power with the 
 advice of the Council of State and in the Recess of the 
 Legislature to lay Embargoes or prohibit the Exportation 
 of any Commodity for any time not exceeding thirty Days 
 (marg. note, "and in Case any Emergency shall require an 
 Embargo to be prolonged beyond the time above limited 
 that then it shall be the Duty of the Governor to convene 
 the Legislature and recommend it to the consideration") 4ba* 
 
 B. That it shall be the duty of the Governor to inform the 
 Legislature at every Session of his proceedings and of the 
 Condition of the State so far as may respect his department 
 and to. recommend such matters to their consideration as 
 shall appear to him to concern its good government, welfare 
 and prosperity ; and also to correspond with the Continental 
 Congress and other States ; transact all necessary business 
 with the officers of Government civil and Military; to take 
 care that the laws are faithfully executed; and to expedite 
 all such measures as may be resolved upon by the Legis- 
 lature. 
 
 Draft B was, in substance, adopted and became § 19. 
 
 (Council of State.) A. And this convention doth further 
 ordain that once in every five years five wise and discreet 
 Freeholders shall be chosen by the Joint Ballot by both 
 Houses of Legislature as Counsellors of State three of whom 
 to be a quorum to assist the Governor in exercising the 
 Supreme executive Power ; and to continue in office for the 
 Term of five years ; and all Vacancies by Removal of office 
 Death Resignation or Absence from the State shall be sup- 
 plied by the same authority. And this Convention doth 
 further ordain that the Secretary of State shall officiate as 
 Secretary of the Council of State and keep regular Journals 
 of their Acts and Proceedings to which every Counsellor of 
 State shall have free Access and the Privilege of entering 
 his Dissent to any Resolution and the Reasons at large. 
 
The First Constitution, 1777. 529 
 
 Not in draft B. The idea of an executive council was 
 ■doubtless inherited from the colonial period, and such a 
 council had already been established by the Constitutions, 
 of several states. So far as it was intended to control 
 or diminish the governor's authority its powers were 
 "vested in the Council of Appointment which was clothed 
 with large executive functions, and, by construction, at 
 first practical and later constitutional by the amendment 
 of 1 80 1, its members were given complete control of 
 executive appointments. The provision in this paragraph 
 making the secretary of state secretary of the council of 
 state was followed, in substance, by the act of 1778 
 (chapter 12), which made the secretary of state ex officio 
 clerk of the Council of Appointment. The limitation of 
 the governor's veto power appears in the section creating 
 the Council of Revision, which vested the joint veto pow- 
 er in the governor, the chancellor, and judges of the 
 supreme court. 
 
 (Deputy Governor.) A. And this Convention doth 
 further ordain that the ^iee president of the counci! :tate 
 senate for the Time being shall be the Lieutenant or Deputy 
 Governor of this State & CYcrcisc all the aiithcr.ty not a^ 9f- 
 ticr.cd to the office of govcrno:' but as such shall have no 
 Authority except in Case of the Death, Removal, Resigna- 
 tion or Absence from the State of the governor and until 
 another be chosen or the governor so absent return. 
 
 Not in B. The essential parts of this paragraph were 
 included in the sections providing for a lieutenant gov- 
 ernor and a president of the senate. 
 
 (Lieutenant Governor.) A. (Addendum.) And this 
 
 Convention doth further ordain that at every Election of a 
 
 Governor a Lieutenant Governor shall in the same manner 
 
 be elected, who shall always ex officio be President of the 
 
 Vol. I. Const. Hist.— 34. 
 
530 Constitutional History of New York. 
 
 Senate and in case of the Impeachment of the Governor or 
 his Removal from Office, Death, Resignation or Absence 
 from the State shall exercise all the Power and Authority 
 pertaining to the office of Governor of this State until another 
 shall be chosen or the Governor so absent shall return or 
 be acquitted. 
 
 B. And this convention doth further ordain that at every 
 election of a Governor a Lieutenant Governor shall in the 
 same manner be elected who shall always by virtue of his 
 office CY cff-cio be president of the senate and upon an equal 
 division have a casting voice in the drl:bcraticr.s Discussions ; 
 and in case of the Impeachment of the Governor or his re- 
 moval from office, Death, Resignation or absence from the 
 State of the Governor shall exercise all the power and author- 
 ity appertaining to the office of Governor of this State until 
 another shall be chosen or the Governor so absent or im- 
 peached shall return or be acquitted. 
 
 Draft A contained no provision for a lieutenant gov- 
 ernor. In draft B the lieutenant governor was a constitu- 
 ent member of the senate to the extent that he could vote 
 to dissolve a tie, which apparently would have given him 
 the right to vote on a bill. The provision for a lieutenant 
 governor appears as § 20. 
 
 (President of Senate.) A (addendum) & B. And when- 
 ever the Government shall be administered by the Lieuten- 
 ant Governor, the Senators shall have power to elect one of .?' 
 their [Numbers ] Members to the office of President of the 
 Senate which he shall exercise during such Vacancy ; [but] 
 and if. during such Vacancy of the office of Governor the 
 Lieutenant Governor shall be impeached, displaced, resign 
 or be absent from the State the [Council of State] President 
 of the Senate shall [jointly] administer the Government and 
 immediately issue a Proclamation for convening the Legis- 
 lature at the End of thirty days, and at their meeting a Gov- 
 ernor and Lieutenant Governor shall be appointed by Joint 
 
The First Constitution, i^jj. 531 
 
 Ballot of both Houses to continue in OfBce until others shall 
 be elected by the Suffrages of the People at the succeeding: 
 Election. 
 
 This provision is not in draft A, and does not seem to- 
 have elicited any serious discussion; it appears as § 21. 
 
 (State Treasurer, How Chosen.) A & B. That the 
 Treasurer of this State shall be appointed by act of the Legis- 
 lature [by the General assembly by Ballot & hold his office 
 during their will and pleasure] to originate with the Generali. 
 Assembly provided that the (marg. note, "treasurer shall 
 not be elected out of either Branch of the Legislature"). 
 
 This provision appears as § 22. 
 
 (Officers, How Appointed.) A. And this convention doth 
 further ordain that all other civil officers (and military) in, 
 this State shall be appointed in the manner following, viz.. 
 
 The governor for the Time being shall name to the Legis- 
 lature such persons as he may deem qualified for the same, 
 and the Legislature if they think proper may appoint them, 
 if not the Governor shall continue to name others till he shall 
 name such as may be agreeable to the Legislature; and in 
 Case none of the first si^ four persons whom the governor 
 may name shall be agreeable to the Legislature for any of 
 the said offices, that then the legislature proceed to appoint 
 without waiting for his further nomination. 
 
 B. And this convention doth farther ordain that all other 
 civil officers in this State not heretofore eligible by the people 
 ' cf the Cclor.y of Nc.v Yorl: shall be appointed in the manner 
 following, viz. : 
 
 The Governor for the time being shall name to the Legis- 
 lature such persons as he may deem qualified for the same 
 and the Legislature if they think proper may appoint them, 
 if not the Governor shall continue to name others till he shall 
 name such as may be agreeable to the Legislature. And in 
 case none of the first four persons whom the Governor may 
 
532 Constitutional History of New York. 
 
 name should be agreeable to the Legislature for any of the 
 said offices, that then the Legislature shall proceed to appoint 
 without waiting for his further nomination. 
 
 After considerable discussion, Mr. Jay offered the fol- 
 lowing substitute : 
 
 "The General Assembly shall once in every year openly 
 nominate and appoint one of the senators from each of the 
 great districts which senators shall form a council for the 
 appointment of the said officers, of which the governor for 
 the time being or the lieutenant governor or president of the 
 senate when they shall respectively administer the govern- 
 ment shall be president and have a casting voice, but no 
 other vote; and with the advice and consent of the said 
 council shall appoint all the said officers, and that a majority 
 of the said council be a quorum. And further that the same 
 senators shall not be eligible to the same council for two 
 years successively." 
 
 Later, on his motion, the speaker of the assembly was 
 added as a member of the council. William Harper pro- 
 posed to strike out the provision making the governor a 
 member of the council, which would have left the sole 
 power in the hands of the four senators. This was re- 
 jected by a vote of 12 to 27. Colonel De Witt's motion 
 to add to the council one member of the assembly from 
 each county was also rejected by the same vote. Mr. 
 Wisner's motion to add one member of assembly to the 
 council also met the same fate. On Robert Harper's 
 motion the senators were made eligible for two successive 
 years. On Mr. Jay's motion the section was amended by 
 making it applicable to all civil ofificers whose appoint- 
 ment was not otherwise provided for by the Constitution, 
 but later the word "civil" was stricken out. Robert Yates 
 proposed a plan by which the senate and assembly would 
 each nominate two persons, and from these four the gov- 
 
The First Constitution, ly'l'J. 533 
 
 ernor would appoint one to the offices to be filled, except 
 that the assembly was to furnish the governor a list of 
 persons qualified for appointment as magistrates in each 
 county, from which list he was to make his selection. 
 This proposition, and also one by Mr. Tredwell, that all 
 appointments be made by act of the legislature, was re- 
 jected. Robert R. Livingston proposed to increase the 
 governor's power as a member of the council by giving 
 him a vote on all questions, with the further provision 
 that "on an equal division his shall be considered as the 
 casting voice." This was rejected by a vote of 15 to 21. 
 Mr. Morris moved that the words "and consent" be 
 stricken out, with the intent that the governor may ap- 
 point as he pleases against the advice of the council, and 
 appeal to the people. This was rejected by thirty-two 
 negative votes. Mr. Tredwell's proposition, that the 
 council be selected from the assembly instead of the 
 senate, was also rejected by a vote of 2 to 34. On the 
 iQth of April, on motion of R. R. Livingston, the provision 
 making the speaker of the assembly a member of the 
 council was stricken out, leaving the council composed of 
 the governor and four senators chosen by the assembly. 
 Jay was not then present, and did not attend the Conven- 
 tion again until several days after the Constitution was 
 adopted. 
 
 The method of appointing officers was one of the most 
 important matters considered by the Convention, and the 
 plan finally adopted had a very significant influence on 
 the political history of the state prior to the adoption of 
 the second Constitution. The governor, lieutenant gov- 
 ernor, senators, and members of assembly had been made 
 elective by provisions already adopted. Most of the local 
 officers were then elective by statute, and the provisions 
 of this proposed section embraced a large number of 
 offices, state as well as" local, and prospective as well as 
 
534 Constitutional History .of New York. 
 
 those already in existence. The proposition shows that 
 the time had not yet come for general popular elections, 
 and it also shows the disinclination to vest the power of 
 appointment in the governor. It was a curious mingling 
 of executive and legislative functions, making the whole 
 legislature practically an executive council. Mr. Piatt's 
 amendment to substitute the judges of the supreme court 
 for the legislature was not less objectionable. We find 
 an interesting commentary on the provision which led 
 to the creation of a Council of Appointment, in the letter 
 from Jay to Livingston and Morris, dated at Fishkill, 
 April 29, I yyy, nine days after the Constitution had been 
 adopted, and before Jay returned to the Convention. In 
 this letter Jay says that the plan of appointing officers by 
 the governor and legislature was generally disapproved, 
 that many other methods were devised by different mem- 
 bers, that these and others suggested by himself were 
 mentioned to the Convention, and that, while preferring 
 the Piatt amendment to the original clause, he thought 
 a better method could be devised, and that he spent an 
 evening with Livingston and Morris at their lodgings, in 
 the course of which he. Jay, proposed the plan for the 
 institution of the Council of Appointment, and that, after 
 conversing on the subject, he, Livingston, and Morris 
 agreed to bring it into the House the next day. It seems 
 clear from this letter that Jay did not then know that the 
 speaker had been eliminated from the council, for he 
 refers to that provision as still a part of the section, re- 
 marking that it was adopted to "avoid the governor's 
 having frequent opportunities of a casting vote." Jay's 
 relations to this subject as Governor of the state twenty 
 years afterwards, the trouble between himself and the 
 other members of the council, resulting in the Convention 
 of 1801, and the abolition of the council by the Conven- 
 
The First Constitution, 1777. 535 
 
 tion of 1 82 1, will be considered in subsequent chapters. 
 The section is number 23 in the Constitution as adopted. 
 
 (Officers to be Commissioned by Governor; Judicial 
 Tenure.) A. That all Judges of Courts in this State, 
 whether of Law, Equity or Admiralty hold their Offices 
 during their good behavior or until they shall respectively 
 have attained the age of Sixty-five years [or until the legis- 
 lature shall think it expedient to remove them for incapacity 
 to discharge the same] . 
 
 A & B. That all military [and militia] officers shall be 
 appointed by the Governor during pleasure [by and with the 
 advice of the Council of State] . 
 
 That all officers so to be appointed be commissioned by the 
 Governor, 
 
 On Mr. Jay's motion the words, "all Judges of Courts, 
 . . . whether of Law, Equity, or Admiralty," were 
 stricken out, and the words, "the chancellor, the judges 
 of the supreme court, and the first judge of the county 
 court in every county," substituted. On Mr. Tred- 
 well's motion the provision giving the governor power of 
 appointment of all military officers was stricken out. It 
 will be observed that the draft fixed the age limit at 
 sixty-five years, but this limit was reduced to sixty years 
 by the section (24) as adopted, but the journal does not 
 show the change. 
 
 (Judges Not to Hold Other Office.) A & B. That none 
 of the said judges shall [ other than jtidgcs ] of inferior 
 cot-.rti: in the cctinticc hold any other office in this State 
 together and at the same time with that of Judge, other 
 than that of Delegate to the General Congress and if 
 elected to any other office it shall be their election in which 
 to serve. 
 
 This section was modified in form, but apparently with- 
 out debate. It became § 25. 
 
536 Constitutional History of New York. 
 
 (Sheriffs and Coroners.) A & B. That Sheriffs and Cor- 
 oners be annually appointed provided that no person shall 
 be eligible to either of the said offices for more than five years 
 respectively [ and that jncticcc of the pc3.cc CVC17 '-h:ec years . 
 That all clerics of ccur.tic: and ccurtc be appoiiitcd every 
 seven years . That the secretary of State -fac appointcd-CYcry 
 s even year: ]. 
 
 The provision was added that the sherifif should hold 
 no other office at the same time, and as thus modified the 
 section was adopted ahd became § 26. 
 
 (County Treasurers; Town Officers.) A. That County 
 treasurers, town clerks cf prccinctc or tov."nchip3 assessors, 
 supervisors, constables collectors be annually chosen, by Bal- 
 lott by the Inhabitants of this State in such manner as the 
 Legislature may direct. 
 
 That all other officers not hereinbefore named be ap- 
 pointed in such manner as the Legislature may direct. 
 
 Marg. note. "Commissioners & overseers of the high- 
 way, overseers of the poor, chamberlains of corporations, 
 county treasurers, clerks of townships or highway supervis- 
 ors, assessors, constables, collectors shall be elected or ap- 
 pointed in the manner heretofore accustomed until the legis- 
 lature shall have prescribed a mode of such elections by bal- 
 lot." 
 
 B. That County Treasurers, Town Clerks, Supervisors, 
 Assessors, Constables and Collectors and all other officers 
 heretofore eligible by the people shall continue to be ap- 
 pointed in the manner directed by the present or future acts 
 of legislature. 
 
 This section, substantially from draft B, with some 
 omissions and additions, became § 29. 
 
 (Delegates in Congress.) A & B. That delegates to rep- 
 resent this State in the general Congress of the American 
 States be annually appointed by an act of the Legislature, 
 
The First Constitution, ITJJ. 537 
 
 without the nomination of the Governor, which shall orig- 
 inate in the [council] senate but be liable as all other acts 
 are to the amendment of the general assembly below [3!:'.ycU 
 with respect tc r.a:::c3 aj-anjlhiiig - elsc ]. 
 
 The Convention rejected an amendment offered by Mr. 
 Tredwell providing that the seat of a member of the legis- 
 lature should become vacant on his election to Congress. 
 The substitute proposed by Mr. Morris was adopted, 
 providing that "the senate and assembly shall each openly 
 nominate as many persons as shall be equal to the whole 
 number of delegates to be appointed, after which nomina- 
 tion they shall meet together, and those persons named 
 in both lists shall be delegates ; and out of those persons 
 whose names are not on both lists, one half shall be 
 chosen by the joint ballot of the senators and members 
 of assembly so met together as aforesaid." This pro- 
 vision became § 30. 
 
 (Chancellor and Judges may sit in Senate.) A. marg. 
 note. "That the judges of the supreme court & chancellor 
 of this State sit 4s-' the cotir.ci! of thi: Stats senate to advise 
 and deliberate, but not to vote on any question whatever." 
 
 B. That the Judges of the Supreme Court and Chancellor 
 of this State shall sit in the senate to advise "r.d deliberate 
 but not to vote on any question whatever. 
 
 Not adopted. This suggestion to make the judges 
 advisory members of the senate apparently received no 
 direct consideration by the Convention, but the principle 
 of the suggestion was practically adopted in the pro- 
 vision for a Council of Revision composed of the gov- 
 ernor, chancellor, and judges of the supreme court, whose 
 powers will be considered in a note to the section on that 
 subject. 
 
538 Constitutional History of New York. 
 
 (Court of Impeachments and Correction of Errors.) A 
 (addendum) and B. And in order that all delinquents how- 
 ever exalted 4ft-their rank & station may be amenable to 
 the Laws and prevented from screening themselves fromi 
 Punishment under the sanction of Office and that the sub- 
 ject may be secured not only against corruption and .the 
 abuse of power but against the errors and mistakes of those 
 who shall be entrusted with the dispensation of justice; This 
 convention doth further ordain that a Court shall be insti- 
 tuted for the trial of Impeachments and the Correction of 
 Errors under the Regulations which shall be established by 
 the Legislature ; and to consist of the senators, the Chancel- 
 lor and the Judges of the Supreme Court, a majority of the 
 Senators and of the Judges respectively with the chancellor 
 being necessary to form a Quorum capable of proceeding 
 on Business, except that when an impeachment shall be 
 prosecuted against [ cither of the senators] the Chancellor 
 or either of the Judges of the Supreme Court he shall stand 
 suspended from exercising his office until his acquittal and 
 the other members shall constitute the Court; and in like 
 manner when an appeal from a Decree in Equity shall be 
 heard the Chancellor shall inform the Court of the reasons 
 of his Decree ; but shall not have a voice in the final sentence 
 — And if the cause to be determined shall be brought up by 
 writ of error on a question of Law on a judgment in the 
 Supreme Court the Judges of that Court shall assign the 
 Reasons of such their Judgment but shall not have a [have 
 no] voice for its Affirmance or Reversal. 
 
 Draft B, omitting the preamble, was adopted with some 
 modifications in form, and became § 32. 
 
 (Impeachment.) A (addendum) & B. And this conven- 
 tion doth further ordain that before the said Court for the 
 Trial of Impeachments and the correction of Errors the 
 Governor or other commander in chief [the lieutenant gov- 
 ernor, the Senators] the chancellor, the Judges of the Su- 
 preme court [Counsellors of State] Secretary of State, 
 Judges of Admiralty, [Master of the Rolls] Judges of Pro- 
 
The First Constitution, IJJJ. 539 
 
 bat e & all other judicial officer s shall respectively be liable 
 to be impeached by the general Assembly for Mai & Corrupt 
 Conduct in their respective offices; three-fourth parts of 
 the members agreeing to such Impeachment. That previous 
 to the trial of every impeachment the members of the said 
 <:ourt shall respectively be sworn truely and impartially to try 
 and determine the charge in Question according to evidence ; 
 and that no Judgment or Sentence of the said Court shall 
 "be valid unless it shall be assented to by three-fourth parts 
 ■of the members who assisted at the Trial ; nor shall it extend 
 farther than to removal from office and Disqualification to 
 liold or enjoy any place of Honor, Trust or Profit under this 
 State. But the party convicted shall nevertheless be after- 
 wards subject to a farther trial in the Supreme Court by a 
 jury of the Country and to such additional Punishment ac- 
 cording to the nature of the Offense and the law of the land 
 as by the Judgment of the said court shall be inflicted. 
 
 On General Scott's motion, the following was substi- 
 tuted for the first sentence : "That the power of impeach- 
 ing all officers for mal and corrupt conduct in their 
 respective offices be vested in the representatives of the 
 people in general assembly; but that it shall always be 
 necessary that two-third parts of the members present 
 shall consent to and agree to such impeachment." The 
 following was substituted for the last sentence: "But 
 the party so convicted shall be, nevertheless, liable and 
 subject to indictment, trial, judgment, and punishment 
 according to the laws of the land." 
 
 After some other modifications, principally in form, 
 the section was adopted and became 33. 
 
 While this subject was under consideration the follow- 
 ing provision relating to counsel was adopted and became 
 §34: 
 
 "And it is further ordained, That in every trial on im- 
 peachment or indictment for crimes or misdemeanor the 
 
g40 Constitutional History of New York. 
 
 party impeached or indicted shall be allowed counsel as in 
 civil actions." 
 
 (Common Law Continued.) A (addendum) & B. And 
 this Convention doth further ordain that the Common Law 
 of England and so much of the Statute Law of England and 
 Great Britain as have heretofore been adopted in practice in 
 this State as well as all Acts of the former governors, coun- 
 cils & General Assemblies of the Colony of New York which 
 were respectively in force in this State on the Day of 
 
 last shall until until altered or repealed by a future Leg- 
 islature of this State continue to operate and be of force and 
 effect unless where they are temporary in which case they 
 shall expire at the times rc-pcctivclj Umited for their Dura- 
 
 tion 
 
 r,^.- i- 
 
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 n-^rl 
 
 «ii«^; 
 
 
 
 
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 ,no.-.+ +^ +1-1/, 
 
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 -^-^1'-- 
 
 
 
 ^...v-u. 
 
 *" 
 
 St::lo ] such parts of the said common statute and pro- 
 vincial laws [respectively] being rejected and hereby 
 [ T^rr.lle; :] as concern [ respects ] the Allegiance [-sad] here- 
 tofore yielded to and the Sovereignty Government and Pre- 
 rogatives claimed or exercised by the King of Great Britain 
 and his [ancestors] predecessors. [Marg. note, "over this 
 state and its inhabitants or which imply a power in the 
 Parliament of England or Great Britain 4c-restrain or regu- 
 late commerce manufacturers or internal policies of this 
 State, or respect the Church of England or are incompatible 
 with a free & equal Toleration of all Denominations of Chris- 
 tians without distinction or Preference"] or which are repiTg- 
 nant to the Rights and priviledges of a free & Independent 
 ■ Statr people or to the Constitution and frame of Government 
 declared and established by this Convention, Saving to all 
 bodies corporate & politic and to all private Persons the 
 Lands, Tenements, hereditaments, Rights, Liimunities and 
 franchises derived from the King of Great Britain & his 
 [Ancestor] predecessors before the [fourth] day of [July 
 last]. 
 
The First Constitution, 1777. 541 
 
 It will be observed that the original proposed to adopt 
 the common law of England. This was qualified by- 
 Robert Yates's amendment of the first clause making it 
 read: "such parts of the common law." etc. The Con- 
 vention added a provision validating the acts of the 
 colonial congresses and the present Convention, and, on 
 motion of Abraham Yates, the proceedings of the com- 
 mittee of safety were included in this confirmation. The 
 foregoing provisions became § 35. 
 
 (Religious Toleration.) A. And whereas it becomes the 
 benevolent principles of rational Liberty not only to expel! 
 civil Tyranny, but also to guard against that Spiritual 
 oppression and Intollerance, wherewith the Bigotry and 
 Ambition of weak and wicked priests and princes have 
 scourged mankind. 
 
 This Convention in the name and by the Authority of the 
 good people of this State do further ordain determine and 
 declare that free Toleration be forever allowed in this State 
 (marg. note, "in religious Profession and worship to all 
 mankind") to all dgnc:r.inat:c::3 of Chrictians without prcf 
 
 crcncc cr 
 
 ... Alr-i-l-^^^'r^^^ n^A 4-/^ oil T^ 
 
 teach for - true Doctrines principles incompatible with and 
 repugnant to tha peace, safety a::d well being of civil society 
 
 ^bj!^ •f*-o<->^ ■i-:.»-^ 4-p *-:^^r. :..A~r^ ^^a a^*-^*..^^:^^, ^..a -c»..|1,„,. 
 that as the prcTalencc of Religion and Learning greatly 
 contributes tc the Happiness £. Security of the pccpic of 
 e very free State, the legislature of this State ought shall to 
 ii.f^OT^ them all prefer cncctira^cmcnt. 
 
 B. That the free eYcrcis3 Toleration of religious profes- 
 sion and worship be forever allowed within this State to all 
 mankind. 
 
 This was a marked change from the policy concerning 
 religious toleration which then prevailed in the colony. 
 
542 Constitutional History of New York, 
 
 In the Introduction I have quoted the rule declared by 
 the Duke of York, in his appointment of Governor 
 Andros, in 1674, granting full religious toleration, and 
 have also quoted the paragraph on the same subject in 
 the instructions to Governor Sloughter, in 169 1, in which 
 "Papists" were excepted from the liberty of conscience 
 thereby guaranteed. This restrictive policy had been con- 
 tinued and was in force at the beginning of the Revolu- 
 tion. The instructions to Governor Tryon, the last 
 colonial executive with general jurisdiction, bear date 
 February 7, 1771. He continued in office three years 
 after the first Constitution was framed, — till the latter 
 part of March, 1780, — and the royal instructions to him 
 were therefore in force when the Convention considered 
 the foregoing proposition. Article 60 of the Tryon in- 
 structions is as follows : 
 
 "You are to permit a liberty of Conscience to all per- 
 sons except Papists so they be contented & quiet with a 
 peaceable enjoyment of the same not giving offense or 
 scandal to the government." 
 
 It will be observed that this is substantially identical 
 with the rule stated in the Sloughter instructions, in 1691, 
 and that consequently this policy of limited religious 
 toleration had prevailed for eighty-six years. It is there- 
 fore not surprising that a large number of delegates in 
 the Convention favored a continuation of the restriction 
 to which the people of the colony had so long been ac- 
 customed. 
 
 The instructions, following a long line of precedents, 
 further provided for religious worship under the auspices 
 of the established church by the requirement (article 61) 
 that : 
 
 "You shall take especial Care that God Almighty b& 
 devoutly & duly served throughout your Government the 
 Book of Common prayer as by Law established read each 
 
The First Constitution, 1777. 543 
 
 Sunday & Holliday & the blessed Sacrament administered 
 according to the rites of the Church of England." 
 
 A provision was also made for building and maintain- 
 ing churches and parsonages, and for other details of 
 ecclesiastical administration. The Bishop of London 
 was given exclusive ecclesiastical jurisdiction in the 
 colony, and his certificate was a necessary prerequisite to 
 the appointment of any minister. 
 
 Thus, when the Convention began the consideration 
 of a plan or frame of government for the new state, the 
 established church was one of the institutions of the 
 colony. It formed a most important part of the colonial 
 Constitution, and, because of the union of church and 
 state then existing, the church was as much under the 
 fostering care of the government as any other depart- 
 ment of colonial affairs. The governor had power to 
 appoint ministers to local churches, and he was directed 
 to procure the removal of any minister who might give 
 scandal by his doctrine or manners. But the details of 
 our ecclesiastical history do not belong here, and I only 
 need add that an examination of the legislative records 
 shows that ecclesiastical affairs frequently engaged the 
 attention of the colonial legislature. The first constitu- 
 tional convention determined on a separation of church 
 and state, not only by adopting the policy of universal 
 religious toleration, but also by adopting a provision ex- 
 cluding ministers from the right to hold civil offices, and 
 (article 35) by expressly abrogating and rejecting all 
 parts of the common law or statutes which "may be con- 
 strued to establish and maintain any particular denomi- 
 nation of Christians or their ministers." 
 
 The debate on the section concerning religious tolera- 
 tion, and the propositions for its amendment, afford a 
 striking illustration of the determination then manifest 
 by many of the patriots to incorporate in the Constitu- 
 
544 Constitutional History of New York. 
 
 tion a provision that should absolutely insure religious 
 freedom. John Jay, doubtless remembering the suffer- 
 ings endured by his Huguenot ancestor, Pierre Jay, on 
 the revocation of the Edict of Nantes, proposed to require 
 all citizens to renounce the ecclesiastical as well as the 
 political sovereignty of any foreign power. His opinions 
 on this subject are shown not only by his proposed amend- 
 ments to this section, but also by the amendments sug- 
 gested to the section on naturalization. His purpose 
 here is manifest from two propositions submitted by him 
 when this section was under consideration. The first 
 was as follows : 
 
 "Provided, nevertheless, that nothing in this clause con- 
 tained shall be construed to extend the toleration of any sect 
 or denomination of Christians or others, by whatever name 
 distinguished, who inculcate and hold for true doctrines 
 principles inconsistent with the safety of civil society of and 
 concerning which the legislature of this state shall from time 
 to time judge and determine." 
 
 After considerable debate Mr. Jay withdrew this 
 amendment, and offered the following : 
 
 "Except the professors of the religion of the Church of 
 Rome, who ought not to hold lands in or be admitted to, a 
 participation of the civil rights enjoyed by the members of 
 this State, until such time as the said professors shall ap- 
 pear in the supreme court of this State, and there most 
 solemnly swear, that they verily believe in their consciences, 
 that no pope, priest or foreign authority on earth, hath 
 power to absolve the subjects of this State from their 
 allegiance to the same. And further that they renounce and 
 believe to be false and wicked, the dangerous and damnable 
 doctrine, that the pope or any earthly authority have the 
 power to absolve men from sin described in and prohibited 
 by the Holy Gospel of Jesus Christ ; and particularly, that no 
 
The First Constitution, 1777. 545 
 
 pope, priest or foreign authority on earth hath power to ab- 
 solve them from the obligation of this oath." 
 
 This was debated at great length, and rejected by a 
 vote of 10 to 19. The next day, Mr. Jay proposed the 
 following addition after the word "mankind :" 
 
 "Provided, that the liberty hereby granted shall not be 
 construed to encourage licentiousness or be used in such 
 manner as to disturb or endanger the safety of the state." 
 
 Robert R. Livingston proposed the following addition 
 as a substitute for the Jay amendment : 
 
 "Provided, that this toleration shall not extend to justify 
 the professors of any religion in disturbing the peace or vio- 
 lating the laws of the state." 
 
 This was rejected, and Jay's amendment was adopted 
 by a vote of 19 to 11. After further consideration 
 Gouverneur Morris moved to amend the paragraph as 
 follows: Between the words "be" and "construed" the 
 word "so" be inserted, that the words "to encourage" be 
 obliterated, and the words "as to excuse acts of" there 
 substituted, and that after the word "licentiousness" the 
 remainder of the paragraph be stricken out and the fol- 
 lowing words inserted, "or justify practices inconsistent 
 with the peace or safety of this state," — so that the whole 
 paragraph may read thus : "Provided that the liberty of 
 conscience hereby granted shall not be so construed as to 
 excuse acts of licentiousness, or justify practices incon- 
 sistent with the peace or safety of this state." This was 
 adopted unanimously. 
 
 (Ministers Disqualified from Holding Office.) A & B. 
 And whereas the Ministers of the Gospel are by their Pro- 
 VoL. I. Const. Hist.— 35. 
 
546 Constitutionq.1 History of New York. 
 
 fession dedicated to the service of God and the cure of souls, 
 and ought not to be diverted from the great duties of their 
 Function. Therefore this Convention doth ordain and 
 determine that no Minister of the Gospel or Priest of any 
 denomination whatever shall at any Time hereafter under 
 any pretense or description whatever be eligible to or capa- 
 ble of holding any civil or military office within this State 
 [of any kind whatever.] 
 
 Adopted in substance as presented, except that on Gen- 
 eral Scott's motion the words "or place" were added after 
 "office." § 39. 
 
 (Militia.) A & B. And whereas it is of the utmost Im- 
 portance to the Safety of every State that it should always 
 be in a state condition of defense, and it is the duty of every 
 man who enjoys the protection of any society to be prepared 
 and willing to defend it, this Convention doth ordain and 
 declare that the whole Militia of this State at all times here- 
 after (as well in peace as in war) shall be armed and dis- 
 ciplined and in readiness for Service. And that all such of 
 the Inhabitants of this State as from scruples of Conscience 
 may be averse to bearing arms, be therefrom excused by the 
 Legislature & do pay to the State such sums of Money in 
 Lieu of their personal Services, as the same may in the 
 Judgment of the Legislature be worth, so as to put all the 
 Members of this State on an equal Footing. And further 
 that a proper Magazine of warlike stores proportionate to 
 the number of Inhabitants be from time to time and at a ll 
 t-msc ' forever hereafter at the Expense of the State and by 
 Acts of the Legislature established, maintained and Con- 
 tinued in every County in tliis State. 
 
 The paragraph was amended by limiting the exemption 
 to Quakers only, and with this change was adopted and 
 became § 40. 
 
The First Constitution, 1777. SA7 
 
 (Trial by Jury.) A & B. And this Convention doth further 
 determine that Tryal by jury in all cases in which t hey hava 
 it hath been heretofore used in the Colony of New York shall 
 be forever established & remain inviolate. 
 
 Marg. note to B. " And that nc Pcr^cn: Y.-h:it:ocvei- "-ithiii 
 thic State shall be liable tc tr. v I.c — s*" P'-r'''h-'-c'''* •^-c" a"V 
 Act of Attainder or other cefitcncc -of -Condcir.nation v.-hcrc 
 the Fart; 1--ji^ -"*■ ■•- r <■■-:* .. ^J u-.;„„ u^„~^ ;., -i,;- 
 
 dcfcr.cc . And no acts of attainder whatsoever shall be 
 passed within this State." 
 
 Mr. Morris moved that the clause prohibiting acts of 
 attainder be amended by adding the words "for crimes 
 hereafter to be committed," and, on Mr. Jay's motion, 
 the Convention agreed to the amendment in the following 
 form, — "for crimes that may be committed after the 
 termination of the present war; and such acts shall not 
 work a corruption of blood." This permitted acts of at- 
 tainder until the close of the war. Later the clause was 
 again modified, and adopted in the following form: 
 "That no acts of attainder shall be passed by the legis- 
 lature of this state, for crimes other than those committed 
 before the termination of the present war ; and that such 
 acts shall not work a corruption of blood." Robert 
 Harper offered a proviso to the jury clause, "that no jury 
 shall hereafter be compellable to unanimity in their ver- 
 dict." This was rejected by a vote of 3 to 28. Mr. Ad- 
 gate's motion authorizing a verdict by three fourths of a 
 jury was rejected by the same vote. On Mr. Jay's motion 
 the following clause was added to the section: "And 
 further, that the legislature of this state shall at no time 
 hereafter institute any new court or courts, but such as 
 shall proceed according to the course of the common law." 
 
 (Naturalization.) B. That every person and persons that 
 shall hereafter come within this State and purchase lands 
 
548 Constitutional History of New York. 
 
 or Tenements within the same and before the Supreme 
 Court shall take an oath of allegiance to the State shall be 
 thereby naturalized and hold and enjoy all the rights and 
 privileges of other the subjects of this State. 
 
 Draft A contained no provision on this subject. 
 
 Here was the full flower of state sovereignty before the 
 state was organized and had a frame of government. The 
 section as originally proposed required the naturalization 
 of persons coming from other states, as well as from 
 foreign countries. This was no comity, but an assertion 
 of exclusiveness which happily was modified before the 
 close of the discussion. The author of this section pro- 
 posed to exclude from citizenship in New York persons 
 residing in other states^ unless they should become the 
 owners of real property in the state, and take an oath of 
 allegiance. Jefiferson proposed a similar rule in his draft 
 of a constitution for Virginia, June, 1776, — the earliest 
 draft I have found for any state, — requiring a seven 
 years' residence and an oath of allegiance, and made no 
 discrimination between foreigners and residents of other 
 states. 
 
 When the paragraph on naturalization was reached 
 Mr. Jay moved to insert the following clause between the 
 words "state" and "shall :" "And abjure and renounce 
 all allegiance and subjection to all and every foreign 
 King, prince, potentate, and state in all matters, ecclesias- 
 tical as well as civil." This amendment shows a clear pur- 
 pose to exclude from the rights of citizenship any person 
 who was unwilling to renounce his allegiance to any for- 
 eign power, ecclesiastical or civil. After refusing to strike 
 out the words, "and subjection," proposed by Mr. Morris, 
 the Convention adopted the Jay amendment by a vote of 
 26 to 9. Mr. Jay proposed the follojving addition to the 
 section : "Provided, that nothing herein contained shall 
 be construed to interfere with the connection heretofore 
 
The First Constitution, J777. 549 
 
 subsisting between the Dutch congregations in this state 
 and the classes and synods in Holland ;" which after some 
 debate he moved to amend by striking out all after "con- 
 strued to" and substituting the following: "Discontinue 
 the innocent connection which the non-Episcopalian con- 
 gregations in this state have heretofore maintained with 
 their respective mother churches in Europe, or to inter- 
 fere in any of the rights of the Episcopalian churches now 
 in this state, except such as involve a foreign subjection." 
 The Convention was evidently unwilling to introduce 
 denominational matters into the Constitution, and the 
 last amendment was rejected by a vote of 6 to 29. Mr. 
 Jay then asked, and apparently obtained, leave to with- 
 draw the first amendment on this subject, but it seems 
 that the Convention afterwards voted on it and rejected 
 it unanimously. An amendment proposed by Mr. Jay 
 requiring applicants to "comply with such further regula- 
 tions as the future legislatures of the state may from time 
 to time make respecting the naturalization of foreigners" 
 was rejected by a vote of 13 to 19. The discussion evi- 
 dently gave the Convention a broader view of the subject, 
 and Mr. Morris proposed to state the provision in the 
 following short form : "That it shall be in the discretion 
 of the legislature to naturalize all such persons and in 
 such manner as they shall think proper," and, after adding 
 the following clause offered by Mr. Jay, already adopted, 
 "provided the persons so to be by them naturalized, shall 
 take an oath of allegiance to this state and abjure and 
 renounce all allegiance and subjection to all and every 
 King, prince, potentate, and state in all matters, ecclesias- 
 tical as well as civil/' — the section was adopted. It is 
 evident that the Convention was not satisfied with the 
 section, and Mr. Morris moved to strike it out. The 
 Convention declined to do this, but adopted unanimously, 
 after considerable debate, an amendment offered by Mr. 
 
550 Constitutional History of New York. 
 
 Jay, applying the section to persons who, "being born in 
 parts beyond sea and out of the United States of Amer- 
 ica, shall come to settle in and become subjects of this 
 state," and the paragraph as thus amended was finally 
 adopted by a vote of 20 to 15, and became § 42. The 
 Jay amendment perfected the scheme by confining natur- 
 alization to foreigners without any attempt to exclude 
 Americans from citizenship in this state. 
 
 While the subject of naturalization was under consid- 
 eration, and after the Convention had evidently decided 
 not to require applicants to become owners of real prop- 
 erty, a committee was appointed, consisting of John Jay, 
 James Duane, and Robert R. Livingston, "to report and 
 prepare a paragraph for enabling the members of the 
 other United American states to hold lands in this state." 
 This shows the undeveloped condition of opinion among 
 the statesmen of that period concerning the reciprocal 
 relations between citizens of different states. The mere 
 suggestion that the Constitution should contain regula- 
 tions respecting the ownership of real property in this 
 state by nonresident American citizens shows that there 
 was apparently no thought of a permanent union of the 
 states with a common and interchangeable citizenship. 
 This committee made no report, and the Convention does 
 not seem to have given the subject any further attention. 
 
 There is a striking parallel in many particulars, espe- 
 cially in relation to the independent attitude maintained 
 by the states toward one another in the first stages of our 
 separate history, to that which existed in ancient Greece, 
 where, as Grote tells us in his "History of Greece," vol. 
 2, pp. 183, 184, Harper's edition, "in respect to political 
 sovereignty, complete disunion was among their most 
 cherished principles," and that, "sovereign authority 
 within the city walls," was a settled maxim in the Greek 
 mind. "The relation between one city and another wa& 
 
The First Constitution, 1777. 551 
 
 an international relation, not a relation subsisting between 
 members of a common political aggregate. Within a few 
 miles from his own city walls, an Athenian found himself 
 in the territory of another city, wherein he was nothing 
 more than an alien, — ^where he could not acquire property 
 in house or land, nor contract a legal marriage with any 
 native woman, nor sue for legal protection against injury, 
 except through the mediation of some friendly citizen. 
 The right of intermarriage and of acquiring landed prop- 
 erty was occasionally granted by a city to some individual 
 nonfreeman, as matter of special favour, and sometimes 
 (though very rarely) reciprocated, generally between two 
 separate cities." 
 
 It will be remembered that the Articles of Confederation 
 adopted by Congress November 15, 1777, and ratified by 
 the New York legislature February 6, 1778, contained 
 the provision that "each state retains its sovereignty, 
 freedom, and independence, and every power, jurisdiction, 
 and right which is not by this confederation expressly 
 delegated to the United States in Congress assembled," 
 and that by the articles the states formed a "league of 
 friendship" for certain specified purposes ; but there was 
 a distinct advance toward national comity in the provision 
 that the "free inhabitants" of each state, with certain 
 exceptions, were "entitled to all privileges and immunities 
 of free citizens in the several states," with the "right of 
 ingress and regress" and should "enjoy therein all the 
 privileges of trade and commerce," in like manner as the 
 inhabitants thereof. The principle of this provision is 
 included in the Federal Constitution (article 4, § 2, 
 subd. I ) and also in the 14th Amendment. 
 
 The provision concerning naturalization included in 
 the first Constitution was of brief duration. Ten years 
 later the Federal Constitution, adopted in 1787, and which 
 went into operation in 1789, vested in Congress the power 
 
552 • Constitutional History of New York. 
 
 "to establish an uniform rule of naturalization," and by 
 the enactment of the Federal Law in 1790 this provision 
 of our Constitution became obsolete. 
 
 (Official Oath.) A & B. That every Oath of Office here- 
 after to be administered in this state shall among other 
 Things impose an Obligation on the party taking it to do 
 his duty as a good Citizen in maintaining the Independency 
 [and union of the United States of America] of this State. 
 
 This was not adopted, nor any provision requiring an 
 official oath. Mr. Jay in his letter to Livingston and 
 Morris, referred to in the note on the Council of Ap- 
 pointment, expressed regret that a provision had not been 
 adopted that all persons holding offices under the govern- 
 ment should swear allegiance to it, and renounce all 
 allegiance and subjection to foreign Kings, princes, and 
 states in all matters, ecclesiastical as well as civil. 
 
 April 19th, Mr. Abraham Yates, from the committee 
 appointed to report a plan for organizing a form of gov- 
 ernment, by direction, of that committee, moved, and was 
 seconded by Mr. Morris, that the following paragraph 
 be inserted in the plan of government : 
 
 "And be it further ordained, That the register and clerks 
 in chancery be appointed by the chancellor; the clerks of 
 the supreme court by the judges of said court, the clerks of 
 the court of probate by the judge of the said court; and 
 the register and marshal of the court of admiralty by the 
 judge of admiralty, the said marshal, registers and clerks 
 to continue in office during the pleasure of those by whom 
 they are to be appointed as aforesaid." 
 
 Mr. Jay was not present when this paragraph was 
 adopted, and in his letter to Livingston and Morris pro- 
 tested against it as an unwise change of the plan ofap- 
 
The First Constitution, 1777. 553 
 
 pointment of officers which had been adopted before he 
 was called away from the Convention. 
 
 On motion of Robert R. Livingston, seconded by Mr. 
 Morris, the Convention adopted two additional para- 
 graphs, one relating to the admission of attorneys, which 
 in the final form is a part of § 27, and another re- 
 lating to the duration of offices, which is § 28. Mr. 
 Jay in his letter to Livingston and Morris characterizes 
 the section providing for the admission of attorneys as 
 "the most whimsical, crude, and indigested thing I have 
 met with." He thought that attorneys should be admitted 
 by the supreme court only, and that they should not be 
 obliged to procure a license from every local court in 
 which they had occasion to practice. 
 
 Abolition of slavery. — Mr. Morris moved that the fol- 
 lowing paragraph be added to the plan of government : 
 
 "And whereas a regard to the rights of human nature and 
 the principles of our holy religion, loudly call upon us to 
 dispense the blessings of freedom to all mankind ; and in as 
 much as it would at present be productive of great dangers 
 to liberate the slaves within this state ; it is, therefore, most 
 earnestly recommended to the future legislature of the state 
 of New York to take the most effectual measures consistent 
 with the public safety, and the private property of individu- 
 als, for abolishing domestic slavery within the same, so that 
 in future ages every human being who breathes the air of 
 this state shall enjoy the privileges of a freeman." 
 
 The part of the proposition without the preamble was 
 adopted by a vote of 24 to 8. Consideration of the pre- 
 amble was postponed. The next day Mr. Morris pro- 
 posed a new preamble as follows : "Inasmuch as it would 
 be highly inexpedient to proceed to the liberating of slaves 
 within this state, in the present situation thereof." This 
 was adopted by a vote of 24 to 12. Mr. Robert R. 
 
554 Constitutional History of New York. 
 
 Livingston then moved the previous question on the pre- 
 amble and section, and the previous question was carried 
 by a vote of 31 to 5. There does not seem to have been 
 another vote on the section and preamble, but, according 
 to the journal, the vote on the previous question was the 
 end of the subject at this time. Mr. Jay supported Mr. 
 Morris in this plan to provide for the abolition of slavery, 
 and in his letter of April 29, already cited, he regrets 
 that a provision on this subject was not adopted. He 
 hoped to make New York the pioneer in the movement 
 for the abolition of slavery. 
 
 Indian contracts. — Mr. Jay offered the following ad- 
 ditional paragraph : 
 
 "Whereas the right of pre-emption to all Indian lands 
 within this state appertains to the good people thereof; and 
 whereas it is of great importance to the safety of this state 
 that peace and amity with the Indians within the same be 
 at all times supported and maintained; and whereas the 
 frauds too often practiced towards the said Indians in con- 
 tracts for their lands have for divers instances been pro- 
 ductive of dangerous discontents and animosities. Be it 
 ordained, That no purchase or contracts for the sale of lands 
 made since the 14th day of October in the year of our Lord, 
 1775, or which may hereafter be made with or of the said 
 Indians, within the limits of this state, shall be binding on 
 the said Indians or deemed valid unless made under the 
 authority and with the consent of the legislature of this 
 state." 
 
 This was adopted omitting the first clause of the pre- 
 amble relating to the right of pre-emption of Indian lands. 
 
 Council of Revision. — While the second section rela- 
 tive to the governor's veto power was under considera- 
 tion, Robert R. Livingston presented the following plan 
 for a Council of Revision : 
 
The First Constitution, ijjy. 555 
 
 "And whereas laws inconsistent with the spirit of this 
 constitution or with the public good may be hastily and 
 unadvisedly passed, be it ordained that the governor for the 
 time being, the chancellor and the judges of the supreme 
 court or any two of them, together with the governor shall 
 be and hereby are constituted a council to revise all bills 
 about to be passed into laws by the legislature ; and for that 
 purpose shall assemble themselves from time to time when 
 the legislature shall be convened ; for which nevertheless they 
 shall not receive any salary or consideration under any pre- 
 tense whatever, and that all bills which have passed the sen- 
 ate and assembly shall before they become laws be presented 
 to the said council for their revisal and consideration and 
 if upon such revision and consideration it should appear 
 improper to the said council or a majority of them that the 
 said bill shall become a law of this state, that they return 
 the same together with their objections to the same in writ- 
 ing to the senate, who shall enter the objections sent down 
 by the council at large in their minutes, and proceed to 
 reconsider the said bill. But if, after such reconsideration 
 two thirds of the senators present shall, notwithstanding the 
 said objections, agree to pass the same it shall together with 
 the objections be sent down to the general assembly, where 
 it shall also be reconsidered, and if approved by two thirds of 
 the members present shall be a law. And in order to pre- 
 vent any unnecessary delay : 
 
 "Be it further ordained. That if any bill shall not be re- 
 turned by the council to the senate within ten days after it 
 shall have been presented to the council the same shall be a 
 law, unless the legislature shall by their adjournment render 
 a return of the said bill within ten days impracticable, in 
 which case the bill shall be returned to the senate on the 
 first day of the meeting of the legislature after the expira- 
 tion of the said ten days." 
 
 It will be observed that a vetoed bill was to be returned 
 to the senate in all cases. On Mr. Hobart's motion the 
 provision was amended by requiring a disapproved bill 
 
556 Constitutional History of New York. 
 
 to be sent to the house in which it originated. Mr. 
 Hobart's amendment also changed the rule in the original 
 section by which a vetoed bill could be repassed by a vote 
 of two thirds of the members of each house "present," 
 so that it must have been passed by two thirds of the 
 house to which it was returned, and by two thirds of the 
 members present in the other house, requiring the assent 
 of two thirds of all the members, instead of those present. 
 In other respects the paragraph was approved as pre- 
 sented by Mr. Livingston, and became § 3 of the Con- 
 stitution finally adopted. 
 
 (Militia Officers.) T!-.-t a!! military or militia ofSccrs 
 hold their ccn::i:i3cion= during the will S: plcacuro cf iha 
 
 1„„;-1„4....-n 
 
 This appears in A, erased, but is not in B. 
 
 Constitution Adopted. 
 
 The Constitution was considered and discussed from, 
 day to day until April 20th, when the whole instrument 
 was reviewed, and, after several minor corrections and 
 some important ones, it was read and adopted by a vote 
 of 32 to I ; the only dissenting vote was cast by Peter R. 
 Livingston, of Albany. The journal shows that duringf 
 the discussion of the Constitution less than one third of 
 the entire Convention was in attendance. We are doubt- 
 less justified in assuming that the other members were 
 elsewhere engaged in the performance of patriotic duties^ 
 incident to the exigencies of the times, or, for other good 
 and sufficient reasons, were prevented from attending- 
 the Convention. Mr. Jay had been called away by his 
 mother's death, which occurred on the 17th, and was not 
 present when the Constitution was adopted. General Ten 
 Broeck, president of the Convention, and Mr. Duane were 
 
The First Constitution, IJTJ. 557 
 
 also absent. Vice President Pierre Van Cortlandt was 
 "detained by adverse weather on the opposite side of 
 the river." General Leonard Gansevoort of Albany was 
 acting as president pro tern. It seems that the secretaries 
 of the Convention used all their influence to prevent the 
 final question being met that evening, for the reason that 
 the president and vice president were both absent, and 
 for the further reason that they wished to engross and 
 prepare a copy for signature, but their objections were 
 unavailing, and the Constitution was adopted, including 
 the amendments agreed to during the day, and without 
 being engrossed. The draft as thus agreed to was signed 
 by Leonard Gansevoort, president pro tern., but the secre- 
 taries, "indulging some feeling on the occasion, did not 
 countersign the draft, and the Constitution as finally 
 adopted did not receive their attestation." The following 
 are the names of the men who voted to adopt the new 
 Constitution and thus institute an independent state gov- 
 ernment in New York : 
 
 Albany. — ^Leonard Gansevoort, president pro tew,., 
 John Ten Broeck, Jacob Cuyler, Abraham Yates, John 
 James Bleecker. 
 
 Charlotte. — John Williams, Alexander Webster. 
 
 Cumberland. — Simon Stephens. 
 
 Dutchess. — ^Jonathan Landon, Robert R. Livingston, 
 Gilbert Livingston. 
 
 New York. — John Morin Scott, Evert Bancker, Peter 
 P. Van Zandt, Daniel Dunscomb, Robert Harper, James 
 Beekman, Anthony Rutgers. 
 
 Orange. — Henry Wisner, Jeremiah Clarke, William 
 Allison. 
 
 Suffolk. — ^William Smith, Thomas Tredwell, Matthias 
 Burnet Miller, John Sloss Hobart. 
 
 Tryon. — William Harper. 
 
 Ulster. — Christopher Tappen. 
 
558 Constitutional History of New York. 
 
 Westchester. — Gouverneur Morris, Gilbert Drake, 
 Lewis Graham, Ebenezer Lockwood. 
 
 The Constitution was not submitted to the people, but 
 took effect immediately, and, according to Jackson ex 
 dem. Russell v. White, 20 Johns. 313, above cited, its 
 adoption was deemed the origin of the state government. 
 This day must therefore stand in history as 
 
 The Birthday of the State of New York, 
 Sunday, April 20, 1777. 
 
 Forty-five years later, 1822, Mr. Jay felt compelled to 
 reply to a newspaper criticism charging him with the 
 responsibility for the action of the Convention in adopt- 
 ing the Constitution on Sunday, stating that he was called 
 away by his mother's death on the 17th and was absent 
 several days. His letter to Livingston and Morris, of 
 April 29th, already referred to, shows that if he had been 
 present he would have opposed the adoption of the Con- 
 stitution, possibly not because it was Sunday, but because 
 he deemed it incomplete, and wished to offer additional 
 amendments. This Convention frequently met on Sun- 
 day, and it was not the first of the early conventions to 
 meet on that day. The exigencies of the times demanded 
 prompt and continuous attention, and the delegates 
 seemed to appreciate the fact that war is a rude leveler of 
 days, as well as of men and institutions. 
 
 The Convention, immediately after adopting the Con- 
 stitution, ordered that it be published at the court house 
 in Kingston on the following Tuesday, and that the chair- 
 man of the Kingston committee be requested to notify the 
 inhabitants of Kingston thereof. On that day, Tuesday, 
 April 22, 1777, the new Constitution was read at Kings- 
 ton by Robert Benson, one of the secretaries of the Con- 
 vention, from a platform erected on the end of a hogs- 
 
The First Constitution, 1777. 559 
 
 head, Vice President Pierre Van Cortlandt presiding. 
 Thus was launched the first Constitution of New York. 
 
 Professor John Alexander Jameson, in his "Constitu- 
 tional Conventions," says that this Constitution "was at 
 that time generally regarded as the most excellent of all 
 the American Constitutions." John Adams said that he 
 believed it would do very well. Jay wrote to Gansevoort : 
 "Our Constitution is universally approved, even in New 
 England, where few New York productions have credit." 
 Mr. Jay was chosen first chief justice of the new state, 
 and at the opening of the first term of the supreme court 
 under the authority of the Constitution, held at Kingston 
 September 9, 1777, in the charge to the grand jury he 
 described the new Constitution as "excellent," and said 
 that it had given general satisfaction at home, and been 
 not only approved, but applauded, abroad. John Austin 
 Stevens said that "it is asserted to have been essentially 
 the model of the national government under which we 
 live." 
 
 The draft of the first Constitution, attested by Leonard 
 Gansevoort, president pro tern., the 27th and 28th sections 
 of which and a part of the preamble are wanting, was de- 
 posited in the office of the secretary of state on the 30th of 
 August, 1 82 1. It came to the secretary's office from 
 John McKesson, a nephew of John McKesson, one of the 
 secretaries of the Convention, who retained possession of 
 the Convention documents and records until his death. 
 
 Government Established. 
 
 But this Constitution could not itself set a new govern- 
 ment in motion, and further action was necessary either 
 by the Convention or the people, to provide public officers 
 and machinery for the new state. The Convention, on the 
 same day that the Constitution was adopted, April 20, 
 
S6o Constitutional History of New York. 
 
 1777, appointed a committee consisting of Robert R. Liv- 
 ingston, John Morin Scott, Gouverneur Morris, Abraham 
 Yates, John Jay, and John Sloss Hobart, "to prepare and 
 report a plan for organizing and establishing the govern- 
 ment agreed to by this Convention." While this plan 
 was under consideration by the committee the Convention 
 decided to choose certain state and local officers. This 
 was an assumption by the Convention of authority which 
 it apparently did not possess, for by the Constitution 
 which had just been adopted provision was made for the 
 selection of these officers, either by appointment by the 
 Council of Appointment, or by the governor, or by elec- 
 tion by the people. This action shows the revolutionary 
 and somewhat irregular methods adopted to set the new 
 government in motion. If the provisions of the Consti- 
 tution had been followed strictly, the Convention would 
 have provided for the election of the governor, lieutenant 
 governor, and the legislature ; the legislature would have 
 provided a Council of Appointment, and the officers 
 would then have been chosen under constitutional sanc- 
 tion. 
 
 Instead of this, some forty men, about one third of the 
 Convention, determined to choose the principal state offi- 
 cers and certain local officers in adva:nce of the governor 
 and legislature; and they also determined to select the 
 senators and members of assembly from the southern part 
 of the state, which was then in possession of the British, 
 and where no election could then be held under the new 
 Constitution. These proceedings are a very striking in- 
 stance of the difficulties confronting the New York 
 patriots in their efforts to establish an independent gov- 
 ernment; but, however irregular the proceedings of the 
 Convention may have been when judged by principles ap- 
 plicable to an orderly constitutional government in time of 
 peace, it must not be forgotten that New York was then 
 
The First Constitution, 1777. 561 
 
 the scene of active military operations, that many members 
 of the Convention were in the field, earnestly engaged in 
 the great struggle, and that those who found it practicable 
 to attend the, Convention could not be expected to adhere 
 to the technical rules now deemed so essential in the ad- 
 ministration of constitutional government. 
 
 The Third Provincial Congress, by the resolutions 
 adopted May 31, 1776, recommending a new election of 
 deputies authorized to institute and establish "such a gov- 
 ernment as they shall deem best calculated to secure the 
 rights, liberties, and happiness of the good people of this 
 colony," had evidently intended to provide for the election 
 of a congress with full power to organize such a govern- 
 ment ; but it should be noted that when this election was 
 recommended, and when it was held, American inde- 
 pendence had not been declared, and that the resolutions 
 providing for the election stated that the government so to 
 be instituted by the new Provincial Congress was "to con- 
 tinue in force till a future peace with Great Britain shall 
 render the same unnecessary." If peace had resulted 
 without independence, the government so established by 
 the deputies would have been of a temporary character, 
 tinless continued by the terms of peace. 
 
 But when the deputies, elected under these resolutions, 
 and with this authority, assembled to form the Fourth 
 Provincial Congress, independence had been declared, 
 and the relations of the colony to the home government 
 had been dissolved. The new congress was, therefore, 
 confronted by a problem which did not exist when it was 
 elected, and, instead of instituting a temporary govern- 
 ment for the colony, it was obliged to institute a new gov- 
 ernment for the new state. 
 
 The new Provincial Congress construed its powers to be 
 broad enough for the emergency, and that it had authority, 
 not only to institute a government to meet present condi- 
 
 VoL. I. Const. Hist. — 36. 
 
S62 Constitutional History of New York. 
 
 tions, but that it also had authority to institute a perma- 
 nent government for the state. This authority being con- 
 ceded, it followed as a corollary that the Convention 
 might not only construct the framework of a government, 
 which appears in the written Constitution, but that it also 
 might create or continue offices, and select needed officers 
 to perform the functions of government till the routine 
 of elections and appointments had become established 
 under constitutional and legislative authority. It seems 
 like a great stretch of authority for the Convention to 
 select senators and members of assembly to represent par- 
 ticular districts and counties simply because the people, 
 owing to the presence of the enemy, were unable to hold 
 elections. There was no element of popular choice in 
 this transaction. The Convention appreciated this fact, 
 and admitted the temporary character of the selection by 
 . providing that the people themselves at the earliest oppor- 
 tunity might select their own representatives, who should 
 at once take the place of those chosen by the Convention. 
 The propriety of this proceeding does not seem to have 
 been questioned at the time, and the result justifies the wis- 
 dom and prudence of the Convention. It may be noted, as 
 showing the acquiescence of the people in this action, that 
 one of the senators, Pierre Van Cortlandt, appointed by 
 the Convention to represent the southern district, was 
 chosen the first president of the new senate. 
 
 On the 8th of May the Convention adopted the follow- 
 ing 
 
 Ordinance. 
 
 "Whereas, Until such time as the Constitution and 
 Government of this state shall be fully organized, it is 
 necessary that some persons be vested with power to 
 provide for the safety of the same : 
 
 "Therefore resolved, That John Morin Scott, Robert 
 
The First Constitution, IJTJ. 563 
 
 R. Livingston, Clu-istopher Tappen, Abraham Yates, Jun. 
 Gouverneur Morris, Zephaniah Piatt, John Jay, Charles 
 De Witt, Robert Harper, Jacob Cuyler, Thomas Tred- 
 well, Pierre Van Cortlandt, Matthew Cantine, John Sloss 
 Hobart, and Jonathan G. Tompkins, or the major part 
 of them, be, and they hereby are appointed a Council of 
 Safety, and invested with all the powers necessary for the 
 safety and preservation of the State, until a meeting of 
 the Legislature: Provided that the executive powers of 
 the State shall be vested in the Governor, as soon as he 
 shall be chosen and admitted into Office; previous to 
 which admission, such Governor shall appear before the 
 said Council, and take the oath of allegiance, and also the 
 following oath of office, to be taken by the Governors 
 and Lieutenant Governors of this state, to wit, 
 
 " 'I by the suffrage of the Freeholders of 
 
 the State of New York, according to the laws and Con- 
 stitution of the said State, elected to serve the good people 
 thereof, as their do here, solemnly, in the 
 
 presence of that almighty and eternal God, before whom 
 I shall one day answer for my conduct, covenant and 
 promise to and with the good people of the State of New 
 York, that I will in all things, to the best of my knowledge 
 and ability, faithfully perform the trust, so as aforesaid 
 reposed in me, by executing the laws, and maintaining the 
 peace, freedom, honour, and independence of the said 
 State, in conformity to the powers unto me delegated by 
 the Constitution ; and I pray God so to preserve and help 
 me, when in my extreraest necessity I shall invoke his 
 holy name, as I do keep this my sacred oath and declara- 
 tion.' 
 
 "And whereas. The appointment of officers in this 
 State is by the Constitution thereof vested in the Gov- 
 ernor, by and with the advice and consent of a Council of 
 
564 Constitutional History of New York. 
 
 Appointment, which doth not and cannot exist until after 
 an election of Representatives in Senate and Assembly. 
 
 "And whereas, Many of the said officers are neces- 
 sary, not only for the immediate execution of the laws of 
 this State, and the distribution of justice, but also for the 
 holding of such Elections as aforesaid. 
 
 "Therefore resolved. That the following persons be, 
 and they hereby are appointed within this State, by au- 
 thority of the same, to wit. That Robert R. Livingston, 
 be Chancellor, John Jay, Chief Justice, Robert Yates and 
 John Sloss Hobart, Puisne Judges, and Egbert Benson, 
 Attorney General of this State. That Volkert P. Douw, 
 be First Judge, and Jacob C. Ten Eyck, Abraham Ten 
 Broeck, Henry Bleecker, Walter Livingston, and John 
 H. Ten Eyck, the other Judges for the County of Albany ; 
 and that Henry J. Wendell, be Sheriff, and Leonard 
 Gansevoort, Clerk of the said Count}?. That Ephraim 
 Paine, be First Judge, and Zephaniah Piatt, and Anthony 
 Hoffman, the other Judges, for the County of Dutchess ; 
 and that Melancton Smith, be Sheriff, and Henry Liv- 
 ingston, Clerk of the said County. That Lewis Morris, 
 be First Judge, Stephen Ward, Joseph Strang, and Jona- 
 than G. Tompkins, the other Judges, for the County of 
 West-Chester; and John Thomas, be Sheriff, and John 
 Bartow, Clerk of the said County. That Levi Pawling, 
 be First Judge, and Dirck Wynkoop, jun. the other Judge, 
 for the County of Ulster; and that Egbert Dumond, be 
 Sheriff, and George Clinton, Clerk of the said County. 
 That , be First Judge, and , the 
 
 other Judges, of the County of Tryon ; and that Anthony 
 Van Veghton, be Sheriff, and , Clerk of the 
 
 said County. That , be First Judge, 
 
 , the other Judges, of the County of Orange; and 
 that Jesse Woodhull, be Sheriff, and , Clerk 
 
 of the said County. That William Duer, be First Judge, 
 
The First Constitution, IJTJ. 565 
 
 John Williams and William Marsh, the other Judges, for 
 the County of Charlotte; and that Edward Savage, be 
 Sheriff, and Ebenezer Clarke, Clerk of the said County. 
 That be First Judge, the other 
 
 Judges, of the County of Cumberland; and that Paul 
 Spooner, be Sheriff, and Clerk of the said 
 
 County. And that , be the First Judge, 
 
 and the other Judges, 'for the County of 
 
 Gloucester; and that Nathaniel Merril, be Sheriff, 
 and Clerk of the said County. 
 
 [The blanks for inserting the names of judges and clerks of the 
 counties of Tryon and Orange were, at the request of the deputies 
 from those counties, not filled up ; the said deputies engaging to be 
 answerable to their constituents for the same; and the blanks for 
 judges and clerks of the counties of Cumberland and Gloucester 
 were not filled up for want of a representation of, and sufficient 
 information from, the said counties.] 
 
 '^And Further Resolved, That each and every of the 
 persons herein before appointed, do, before the Council 
 of Safety aforesaid, or such persons as shall be by them 
 appointed, take and subscribe the following oath of alle- 
 giance, to wit, 
 
 " 'I do solemnly swear and declare, in the 
 
 presence of Almighty God, that I will bear true faith and 
 allegiance to the State of New York, as a good subject 
 of the said State ; and will do my duty as such a subject 
 ought to do.' 
 
 "And Further, That every of the judicial officers above 
 mentioned, do before he take upon him the exercise of his 
 office, make the following oath, in manner above men- 
 tioned, 
 
 " 'I do solemnly swear and declare, in the 
 
 presence of Almighty God, that I will, to the best of my 
 knowledge and abilities, execute the office of 
 within the State of New York, according to the Laws and 
 
S66 Constitutional History of New York. 
 
 Constitution of the said State, in defense of the freedom 
 and independence thereof, and for the maintenance of lib- 
 erty, and the distribution of justice among the subjects 
 of the said State, without fear, favour, partiality, affec- 
 tion or hope of reward.' 
 
 "And also that every of the Sheriffs herein before 
 named, do, before he exercise his said office, take in like 
 manner, the following oath, to wit : 
 
 " 'I Sheriff of the County of 
 
 do solemnly swear and declare in 
 the presence of Almighty God, that I will in all 
 things, to the best of my knowledge and ability, do my 
 duty as Sheriff of the said county according to the Laws 
 and Constitution of this State of New York for the fur- 
 therance of justice, and in support of the rights and lib- 
 erties of the said State, and of the subjects thereof.' 
 
 "And that eveiy of the Clerks herein before named, do 
 in like manner, take the following oath, to wit, 
 
 " 'I Clerk of do solemnly 
 
 swear and declare, in the presence of Almighty God, that 
 I will justly and honestly keep the records and papers by 
 virtue of my said office of Clerk committed unto me, and 
 in all things, to the best of my knowledge and understand- , 
 ing, faithfully perform the duty of my said office of Clerk, 
 without favour or partiality.' 
 
 "And whereas, It will be proper that all officers within 
 this State, be, as soon as possible, appointed, in the mode 
 for that purpose prescribed by the Constitution : 
 
 "Therefore Resolved, That all and singular the officers 
 herein before appointed, shall respectively hold their offi- 
 ces, according to the tenure of such offices respectively 
 specified in the said Constitution, if respectively approved 
 of by the Council for the appointment of officers, at their 
 first session ; at which session, such of the said officers as 
 shall be approved of by the said Council, as aforesaid, 
 
The First Constitution, 17^7. 567 
 
 shall receive their commissions in proper form. It is 
 nevertheless provided, That every of the persons herein 
 before named, who held the like office with that so as 
 aforesaid conferred upon him, under authority derived 
 from the King of Great Britain, during good behaviour, 
 shall continue to hold the said office, so long as he shall 
 well and faithfully perform the duties of such office. 
 
 "And whereas, No permanent provision could, with 
 propriety, be made in the Constitution of this State, for the 
 mode of holding Elections within the same, such provi- 
 sions being properly within the power of the legislature, 
 and depending, from time to time, upon the situation and 
 circumstances of the State : 
 
 "And whereas, It is necessary to point out some mode, 
 by which Elections for a Governor, Lieutenant-Governor, 
 and Members of the Legislature may be held within this 
 State : 
 
 "Therefore Resolved, That the Sheriffs of the several 
 counties, hereinbefore mentioned, upon public notice for 
 that purpose, by them given, at least ten days before the 
 day of Election, do direct that Elections be held for Gov- 
 ernor, Lieutenant-Governor and Senators, in each county, 
 by the freeholders thereof, qualified as is by the Constitu- 
 tion prescribed, and for Meijibers of Assembly, by the 
 people at large, at the following places, to wit, 
 
 "In the county of Albany, at the City-Hall in the city 
 of Albany, — at the house of William White, in Schenec- 
 tady, — at the house of George Man, in Schohary, — at the 
 house of Lambert Van Valckenburgh, at Cocksackie 
 Flatts, — at the house of Cornelius Miller, at Claverack, — 
 at the house of Solomon Demming, in King's district, — 
 at the house of Isaac Becker, in Tamhanick, — and at the 
 house of Abraham Bloodgood, at Stillwater. 
 
 "In the county of Ulster, at the Court-House in the 
 town of Kingston, — at the house of Ann Du Bois, in New 
 
568 Constitutional History of Neiv York. 
 
 Paltz, — at the house of Sarah Hill, in Hanover precinct, 
 — at the house of Martin Wygant, in the precinct of 
 Newburgh. 
 
 "In the county of Orange, at the Court-House in 
 Goshen, — at or near the Presbyterian Church, in War- 
 wick, — at the house of John Brewster, in the precinct of 
 Cornwall, — at the Court-House at the New-City, in the 
 precinct of Kakiat, — at the house of Paulus Vandervoort, 
 in Haverstraw, — and at the house of Joseph Maybee, in 
 the precinct of Tappan. 
 
 "In the county of Westchester, at the house of Elijah 
 Hunter, in Bedford, — and at the house of Captain Abra- 
 ham Thiel, in the Manor of Cortlandt. 
 
 "In the county of Dutchess, at the house of the Widow 
 of Simon Westfall, deceased, in Rhinebeck precinct, — at 
 the house of John Stoutenburgh, in Charlotte precinct, — 
 at the house of Captain Jonathan Dennis, in Beekman's 
 precinct, — at or near New Hackensack church, in Rum- 
 bout precinct, — and at Matthew Patterson's, in I'Ved- 
 ericksburgh j^recinct. 
 
 "In the county of Tryon, at the house of Jonathan 
 Veder, in Mohawk district — at the house of John Dunn, 
 in Canajohary district, — at the Church, in Stone Arabia, 
 in Palatine district, — at the house of Frederick Bellinger, 
 in the German Flatts district, — at Smith's Hall in Old 
 England district, — and at the house of Alexander Harper 
 in the town-ship of Harpersfield. 
 
 "In the county of Cumberland, at the house of Seth 
 Smith, in Brattleborough, — at the house of Luke Knoul- 
 ton, in New-Fain, — at the Court-House in Westminster, 
 — at the house of Tarbell, in Chester, — at the 
 
 Town-House in Windsor, — and at the house of Colonel 
 Marsh, in Hertford. 
 
 "In the county of Charlotte, at the new Presbyterian 
 Church, in New-Perth — at the house of Anthony TTofF- 
 
The Fust ConstitmHom^ '777- 369 
 
 nagte, in King^jory, — at the house of Xadianici Spring, 
 in Granville. — and at sonae ocmvenieit place in each of the 
 Towns of Mandi^aer, Danby. and Casfle-Town. 
 
 **And in the coaniy of Gtencesier. at snch jriaces as the 
 Shraiff of the said Cooniy, by die advice of the Connty 
 Gommittee shall appcHnt. for the ooovenience of the Elec- 
 tors within the same. 
 
 "And that the Sheriffs of e\'C3y coimr\-. shall order uje 
 eiecticHis to be hdid in each place aboTC-mentioned, in his 
 coonty. (HI the same day. under the directicHi of tiro 
 reportable Fnediolders ; one to be appointed by the Connty 
 Gxnmittee, the other by the SheriS to aTtend at each of 
 the plac^ whrae ihe Elections are, as aforesaid, directed 
 TO be held in every coonty, who shall joindy saperintoid 
 the said Elections, and nSnm to the Sheriii of the coonty 
 in which soch Elections aie l^id, trae ptdl lists of the 
 EkctitHis in tiie said several places, for Governor. lienten- 
 ant-Goveroor, Senators and R^resentatiTes in Assemhly ; 
 which lists the Sheriff shall transmit nnder his oath of 
 office, to the Council of Safeiy, as far as the same shall 
 rdate to GovemtMr. lieitenant-Govsnor and Senators. 
 and shall cast isp the greatest number of votes for the 
 Representati^Tes in Assembly, and make return of the 
 names of swi of theni as are duly dected. in the manner 
 that has hereof ore beei nsnal and cnstomaiy; and the 
 Cooocil of Safesty shall, upon receipt of tiie poll lists of 
 the Election of Governor. lieotsJant-Govemor and Sen- 
 ators, examine the same, and declare who is the Governor, 
 who the Lientenant-Govemor. and who the Senators so 
 chosen, and slraH administer to the said Governor and 
 Uentenant-Govemor, the oath of allegiance and of o&je. 
 The said £3ectioDS within the sevraal counties to be so 
 hdd, as that the persons thereby chosen may be assemWed 
 at Kingston, in the coonty of Ulster, or snch other place 
 as die said Cotmci] of Safety- shall aj^oint. on the first 
 
570 Constitutional History of New York. 
 
 day of July next; Provided that if by any unforeseen 
 accident, such Elections cannot be so held, then the said 
 Council shall order Election at such other time or times, . 
 as shall, in their opinion, be most conducive to the general 
 interest of the State. 
 
 "And it is Further Resolved, That such Freeholders as 
 have fled from the southern parts of this state, and are 
 now actually resident in any of the other counties of this 
 State, shall be entitled to vote within such counties, for 
 Governor and Lieutenant-Governor as if they had actu- 
 ally possessed Freeholds within the same. And that in 
 case an Election in any county should not be held, by rea- 
 son of the death or resignation of the Sheriff, or for any 
 other cause, that the Council of Safety, or the Governor, 
 in case he shall be sworn into his office, issue orders for 
 an Election for Representatives in Assembly, in such 
 county, and appoint a returning officer to hold the same. 
 And where no County Committee shall be in being, or 
 such Committee shall neglect to appoint returning officers 
 for the places above named in such county, that the per- 
 son for that purpose appointed by the Sheriff sliall alone 
 hold the Election, and make return to the Sheriff, in like 
 manner, as is above directed. 
 
 "And whereas. It is impracticable for the inhabitants 
 of the southern district of this State, to choose Senators 
 to represent them in the Senate thereof, or for the coun- 
 ties of the said district, Westchester excepted, to elect 
 Representatives in Assembly; and it is reasonable and 
 right to give to the said district and counties, a propor- 
 tional share in the legislation of the whole State, as far as 
 is possible in its present circumstances; therefore Re- 
 solved, That Lewis Morris, Pierre Van Cortlandt, John 
 Morin Scott, Jonathan Lawrence, William Floyd, Wil- 
 liam Smith of Suffolk, Isaac Roosevelt, Doctor John 
 Jones, and Philip Livingston, be and they hereby are ap- 
 
The First Constitution, 1777. 571 
 
 pointed Senators for the southern district of this State; 
 and in case of vacancy, such vacancy to be filled up by the 
 choice of the Assembly. And that Abraham Brasher, 
 Daniel Dunscomb, Evert Bancker, Peter P. Van Zandt, 
 Robert Harpur, Abraham P. Lott, Jacobus Van Zandt, 
 Henry Rutgers, jun., and Frederick Jay, be, and they 
 hereby are appointed Representatives in Assembly of the 
 city and county of New York ; Philip Edsall, Daniel Law- 
 rence, Benjamin Coe, and Benjamin Birdsall, of the coun- 
 ty of Queens; Burnet Miller, David Gelston, Ezra 
 L'Hommedieu, Thomas Tredwell, and Thomas Wickes, 
 of the county of Suffolk; William Boerum and Henry 
 Williams, of the county of Kings ; and Joshua Mercereau 
 and Abraham Jones of the county of Richmond ; and in 
 case of vacancy, such vacancy to be filled up by the choice 
 of the Senate, Provided always, that none of the said Sen- 
 ators or Representatives in Assembly so appointed, or 
 hereafter to be appointed as aforesaid, shall continue 
 longer in office than until the Electors they represent shall 
 respectively be in a capacity of electing. 
 
 "By Order of Conventipn. 
 
 "Abraham Ten Broeck, President. 
 "Attest. John McKesson, Sec'ry." 
 
 Convention Adjourns; Council of Safety. 
 
 The Convention continued its sessions tmtil the 13th of 
 May, 1777, when it was dissolved. Its last act was to 
 direct the Council of Safety to meet at the same place, 
 Kingston, on the next day, — the 14th. The Council of 
 Safety organized on the 14th of May by the unanimous 
 election of Pierre Van Cortlandt president, and Robert 
 Benson and John McKesson, secretaries. They had 
 served as secretaries of the Provincial Convention, and 
 Vi^ere afterwards chosen respectively clerks of the senate 
 
572 Constitutional History of New York. 
 
 and assembly. On the 19th of May, 1777, the Council 
 of Safety adopted a resolution requiring the sheriffs to 
 give notice of an election for governor, lieutenant gover- 
 nor, senators, and members of assembly. The date of the 
 election was not fixed in the resolution, but each sheriff 
 was required to give the longest notice possible, and to 
 proceed without further warrant or authority. By the 
 ordinance of the 8th of May it was directed that the elec- 
 tions be held at a time which would enable the legislature 
 to meet on the ist of July at Kingston, or at such other 
 place as the Council of Safety might designate. 
 
 The ordinance required at least ten days' notice of the 
 election, but did not require the election to be held in all 
 the counties on the same day. The elections were held 
 in the month of June, but the legislature did not meet on 
 the 1st of July. The returns of the elections for gov- 
 ernor, lieutenant governor, and senators, were canvassed 
 by the Council of Safety on the 9th of July, at Kingston. 
 This canvass showed that George Clinton was elected 
 both governor and lieutenant governor. 
 
 On the same day the council addressed a letter to him 
 congratulating him on his election to the office of gover- 
 nor and lieutenant governor, and requesting him to attend 
 at Kingston at his earliest convenience and take the oath 
 of the office which he accepts, and resign the other, so 
 that a new election may be held to fill the vacancy. 
 
 General Clinton replied to this letter from Fort Mont- 
 gomery on the nth, accepting the office of governor. He 
 expressed the opinion that his acceptance of the office of 
 governor made it unnecessary to resign the office of lieu- 
 tenant governor, but, for the purpose of removing any 
 doubt on this question, he tendered a formal resignation 
 of the office of lieutenant governor. He also said that, in 
 view of the expected approach of the enemy, it would be 
 
The First Constitution, lyjl- 573 
 
 impracticable for him to leave his post "until the enemy's 
 designs are more certainly known." 
 
 On the 2ist of July the Council of Safety adopted a 
 resolution in which General Clinton was most earnestly 
 requested to appear before the council to take the oath of 
 office, and enter upon the discharge of the important 
 duties of the office of governor. 
 
 On the 30th of July, 1777, General Clinton appeared 
 before the council and took the oath of allegiance, and 
 also the oath of office, which oaths were administered to 
 him by Pierre Van Cortlandt, president of the council. 
 
 A proclamation was issued by the council on the same 
 day, in and by which the council proclaimed and declared 
 "the said George Clinton, Esq., Governor, General, and 
 Commander in Chief of all the Militia, and Admiral of 
 the Navy of this state, to whom the good people of this 
 state are to pay due obedience according to the laws and 
 Constitution thereof." 
 
 Legislature Organized. 
 
 On the i6th of July the Council of Safety adopted a 
 resolution convening the legislature at Kingston, Ulster 
 county, on the ist day of August, and requesting the 
 county committees to notify their representatives^ in sen- 
 ate and assembly accordingly. The legislature did not 
 meet on the ist day of August. On the 6th of August, 
 Governor Clinton issued a proclamation proroguing the 
 legislature until the 20th day of August, and, by another 
 proclamation dated August 18, he prorogued the legisla- 
 ture again until the ist day of September. On the last- 
 named day several members of each house met at Kings- 
 ton, but the number was not sufficient to proceed to busi- 
 ness, and they adjourned from day to day until a suffi- 
 cient number appeared. 
 
574 Constitutional History of New York. 
 
 The constitutional convention had held its sessions in 
 the court house, but, when the legislature convened, that 
 building was occupied by the supreme court with Chief 
 Justice John Jay presiding. The senate met at the house 
 of Abraham Van Gaasbeck, and the assembly at the pub- 
 lic house of Evert Bogardus. The legislature of 1887, 
 by chapter 134, provided for the purchase of the Van 
 Gaasbeck house. It is now owned by the state, and is 
 known as the "senate house." 
 
 In the senate a quorum appeared on the 9th, and the 
 senate was organized by the election of Pierre Van Cort- 
 landt, of Westchester county, president, and Robert Ben- 
 son, clerk. The first senate was composed of the follow- 
 ing members : 
 
 From the southern district. — -Lewis Morris (p. c.) ; 
 Pierre Van Cortlandt* (p. c.) ; John Morin Scott* (p. 
 c.) ; Jonathan Lawrence* (p. c.) ; William Floyd;* Wil- 
 liam Smith of Suffolk* (p. c.) ; Isaac Roosevelt (p. c.) ; 
 Doctor John Jones;* Philip Livingston* (p. c). 
 
 From the middle district. — Levi Pawling* (p. c); 
 Henry Wisner* (p. c.) ; Jesse Woodhull;* Zephaniah 
 Piatt* (p. c.) ; Jonathan Landon* (p. c.) ; Arthur 
 Parkes* (p. c). 
 
 From the eastern district. — Alexander Webster* (p. 
 c.) ; William Duer (p. c.) ; John Williams (p. c). 
 
 From the western district. — Abraham Yates, Jun.* (p. 
 c. ) ; Rinier Mynderse ; Dirck W. Ten Broeck ;* Isaac 
 Paris (p. c.) ; Anthony Van Schaick;* Jellis Funda. 
 
 Those marked with a star were present at the organiza- 
 tion of the senate. Those marked (p. c.) were members 
 of the Provincial Convention. It thus appears that seven- 
 teen members of the first senate were members of the 
 convention which framed the Constitution. 
 
 A quorum of members of assembly did not appear until 
 
The First Constitution, IJTJ. 575 
 
 the loth; on that day thirty-six members appeared, and 
 the assembly was organized by the election of Walter 
 Livingston, of Albany, speaker, and John McKesson, 
 clerk. The following is the list of members of the first 
 assembly. Those marked with a star were present at the 
 organization. Those marked (p. c), twenty-three, were 
 members of the Provincial Convention. 
 
 From the city and county of New York. — Abraham 
 Barsher* (p. c.) ; Daniel Dunscomb* (p. c.) ; Evert 
 Bancker* (p. c.) ; Jacobus Van Zandt (p. c.) ; Henry 
 Rutgers, Jiin. ; Frederick Jay; Peter P. Van Zandt* (p. 
 c.) ; Robert Harper* (p. c.) ; Abraham P. Lott (p. c). 
 
 From the city and county of Albany. — ^Jacob Cuyler (p. 
 c.) ; John Tayler* (p. c.) ; Robert Van Rensselaer (p. c.) ; 
 Walter Livingston ;* William B. Whiting ;* Peter Vroo- 
 man ; John Cuyler, Jun. ;* James Gordon ; Stephen F. 
 Schuyler; Killian Van Rensselaer.* 
 
 From the county of Suffolk. — Burnet Miller (p. c.) ; 
 David Gelston (p. c); Ezra L'Hommedieu* (p. c.) ; 
 Thomas Tredwell* (p. c.) ; Thomas Wickes.* 
 
 From Ulster county. — Johannis G. Hardenburgh ;* 
 John Cantine; Johannis Snyder; Cornelius C. Schoon- 
 maker;* Henry Wisner, Jun.* (p. c.) ; Matthew Rea* (p. 
 c). 
 
 From Queens county. — Philip Edsall; Daniel Law- 
 rence; Benjamin Coe; Benjamin Birdsall* 
 
 From Kings county. — William Boerum; Henry Wil- 
 liams.* 
 
 From Richmond county. — Joshua Mercereau; Abra- 
 ham Jones. 
 
 From Westchester county. — Gouverneur Morris* (p. 
 c); Zebediah Mills* (p. c.) ; Robert Graham;* Thad- 
 deus Crane;* Israel Honeywell, Jun. ; Samuel Drake.* 
 
 From Orange county. — John Hathorn;* Jeremiah 
 Clarke* (p. c.) ; Tunis Kuyper;* Roeluff Van Houten.* 
 
576 Constitutional Hi. _ of New York. 
 
 From Dutchess county. — Dirck Brinkerhoff ;* Anthony 
 Hoffman* (p. c.) ; Gilbert Livingston* (p. c.) ; Jacobus 
 Swartout;* Andrew Moorhouse;* John Schenck (p. c.) ; 
 Egbert Benson.* 
 
 From Tryon county. — Michael Edie; Samuel Clyde; 
 Abraham Van Home;* Jacob Snell; Johannis Veeder (p. 
 c. ) ; Jacob G. Klock. 
 
 From Charlotte county. — Ebenezer Russell; Ebenezer 
 Clarke ; John Rowen ; John Barns. 
 
 There were no returns from the counties of Gloucester 
 and Cumberland. 
 
 An incident illustrating the survival of royal custom 
 occurred at the opening session. When the assembly was 
 organized it appointed a committee of two members to 
 inform the Governor "that the House are ready to pro- 
 ceed to business, and wait His Excellency's commands." 
 After waiting on the Governor, the committee reported 
 that he was pleased to inform them "that he would send 
 for the House immediately." In the afternoon of the 
 same day the Governor's private secretary appeared in the 
 assembly and announced that "His Excellency requires 
 the immediate attendance of the House in the court 
 room." The assembly accordingly attended at the court 
 room, and, on returning, the speaker again took the chair 
 and announced, in the quaint formality of the time, "that 
 His Excellency had been pleased to make a speech to the 
 House, and to present him with a copy thereof," which 
 was read and entered on the journal. This form of entry 
 was followed, substantially, until the legislative session 
 of 1823, when the Governor sent a message to the legisla- 
 ture, as required by the new Constitution, instead of deliv- 
 ering a speech at the opening of the session in the pres- 
 ence of the two houses. The senate journal shows simi- 
 lar proceedings, except that the Governor "requests," 
 
The First Constitution, i^jj. 577 
 
 instead of "requires," its immediate attendance in the 
 court room. 
 
 The Hadden Case. 
 
 An incident illustrating the difficulty attending the new 
 government, and which at the same time shows great 
 solicitude for personal rights, arose the ist of October, 
 1777, when Thomas Hadden, confined in the Ulster coun- 
 ty jail, presented to Chief Justice John Jay and Associate 
 Justices Robert Yates and John Sloss Hobart, a petition 
 for a writ of habeas corpus, which was denied by the 
 judges on the ground that, by the ordinance of the 8th 
 of May, the officers appointed by the Convention were to 
 be approved by the Council of Appointment at its first 
 session ; that the council had held a session, but had failed 
 to approve or disapprove the appointment of the judges, 
 and that for that reason the judges had no authority to 
 act and issue the writ. On the 2d of October, Hadden 
 presented to the assembly a petition setting forth these 
 facts, reciting, also, that he had made frequent applica^ 
 tions to the late Convention and Council of Safety for bis 
 release, which were unavailing because of "their constant 
 attention to objects of greater and more general import- 
 ance;" that his application to the judges for a writ had 
 been refused for the reasons stated ; that thereby he had 
 been "deprived of one of the most valuable privileges of a 
 free subject;" and that "the channels of justice are 
 stopped up;" and he therefore applied to the assembly as 
 the "grand inquest of this state," and as the "guardians 
 of the people," "to assert and vindicate their rights and 
 privileges." The assembly immediately ordered its clerk 
 to serve a copy of the petition on the judges, and direct 
 that they attend the house that day at 4 o'clock in the 
 afternoon. They attended accordingly, and, in reply to 
 a question by the speaker in compliance with an order of 
 
 Vol. I. Const. Hist. — 37. 
 
578 Constitutional History of New York. 
 
 the house, said that the facts stated by Hadden were true, 
 and, on being asked to assign reasons for refusing the 
 writ of habeas corpus, submitted a written statement in 
 which they expressed the unanimous opinion that, by rea- 
 son of the failure of the Council of Appointment to ap- 
 prove their selection as judges, they had no authority to 
 issue the writ. Thereupon the assembly adopted a resolu- 
 tion oflfered by Gouvemeur Morris, declaring that the rea- 
 sons assigned by the judges "are satisfactory," and the 
 Council of Appointment was requested "to approve of the 
 several officers appointed by an ordinance of the late Con- 
 vention for organizing and establishing the government, 
 agreed to by the said Convention, or to appoint others in 
 their stead, to the end that the Governor may be enabled 
 to issue commissions to such officers as they may so ap- 
 prove, or appoint." 
 
 On the 17th of October the council appointed Robert R. 
 Livingston chancellor, John Jay chief justice, and Robert 
 Yates and John Sloss Hobart associate justices. 
 
 Thus closed an incident which illustrates the extreme 
 caution of the founders of the state in beginning the ad- 
 ministration of a government intended to represent a just 
 appreciation of the rights of the individual, and to be 
 wholly free from oppression and tyranny. The Bill of 
 Rights had guaranteed the right to the writ of habeas 
 corpus to every Englishman, and by the Constitution this 
 right had become the inheritance of every citizen of New 
 York. It could not be withheld, except for very cogent 
 reasons. It is worth noting that only three weeks after 
 the organization of the first assembly it was called on to 
 institute an inquiry into the conduct of the judges of the 
 supreme court. The assembly entertained Hadden's peti- 
 tion, and "ordered" the judges to attend the house for 
 the purpose of examining the matter. The Constitution 
 had clothed the assembly with the power of impeachment. 
 
The First Constitution, ijjy. 579 
 
 and the summons to the judges, based on Hadden's peti- 
 tion, was the initial step which might have resulted in an 
 impeachment if it had appeared that the judges refused 
 the writ from improper motives, or for unjustifiable rea- 
 sons. Gouverneur Morris, ever ready in an emergency, 
 here, again, showed his tact and good sense by offering a 
 resolution which, after full debate, was adopted with only 
 four dissenting votes, declaring that the reasons assigned 
 by the judges for refusing to issue the writ "are satisfac- 
 tory." 
 
 This incident is worthy of more than a passing notice. 
 The men charged with the administration of public affairs 
 were trying to set the new state machinery in motion. 
 After some delay the legislature had assembled, and had 
 received its first formal communication from the Gover- 
 nor. The judicial branch of the government had also be- 
 gun the performance of its duties ; but, when the legisla- 
 ture convened and was organized on the loth of Sep- 
 tember, the executive department was still incomplete, for, 
 by the Constitution, a Council of Appointment was to be 
 established with power to appoint or confirm nearly all 
 public officers. Soon after the legislature convened the 
 assembly elected four senators to act with the Governor 
 in the Council of Appointment. By the ordinance of the 
 8th of May, 1777, the selection of the judges by the Con- 
 vention was only temporary, and they were permitted to 
 act only until a meeting of the Council of Appointment. 
 That council met on the i6th of September, but neg- 
 lected to act on the judicial appointments. Hence, by a 
 strict construction, the authority of the judges terminated 
 on that day, and they could not lawfully grant a writ of 
 habeas corpus. Hadden appealed to the assembly, not 
 for the purpose of preferring charges against the judges, 
 but with the view of inducing action which would clothe 
 the supreme court with complete judicial authority. The 
 
580 Constitutional History of New York. 
 
 assembly acted promptly and clearly within its jurisdiction. 
 The judges were required to appear before the assembly 
 and explain their reasons for refusing to grant the 
 highest writ available for a citizen, — the writ of habeas 
 corpus. They responded to the call of the assembly, not 
 as defendants under accusation, but as members of a co- 
 ordinate branch of the government, to explain why they 
 had declined to exercise judicial power in that case. The 
 incident is probably without a parallel in this state. In 
 these modern days the assembly, while possessing juris- 
 diction to do so, would probably not call before it in this 
 manner a justice of the supreme court whose official con- 
 duct had been made the subject of inquiry, but in those 
 initial days of greater simplicity such a proceeding 
 offered the easiest solution of a problem which might 
 have become vexatious if technical rules of procedure had 
 been applied to it. The judges appeared, and in a dig- 
 nified statement presented the reasons for their refusal to 
 grant the writ. It was a scene for an artist. We may 
 readily picture the assembly in the old court house at 
 Kingston where the first Constitution had been mktie, 
 where the first supreme court had been held by Chief 
 Justice John Jay himself, where the first legislature had 
 convened, where the first governor had delivered his first 
 speech to the legislature, and where the first Council of 
 Appointment had been selected, listening to the reply by 
 the judges who had been the honored colleagues of many 
 of them in the late Convention and committees and 
 Council of Safety, and especially to the chief justice, who 
 had borne such a conspicuous part in public affairs during 
 the last two years. There stood the judges ready to give 
 a respectful answer to a respectful request from a branch 
 of the government numbering among its members 
 twenty-three of their associates in the late Convention. 
 Chief Justice Jay bore himself here with his accustomed 
 
The First Constitution, 1777. 581 
 
 dignity and prudence, firmly asserting the correctness of 
 his position, and declining to exercise a doubtful judicial 
 authority. We shall see him again twenty-three years 
 later, when, after having served as the first chief justice 
 of the United States, having performed distinguished 
 diplomatic service for the nation, and having returned 
 to be chosen governor of the state, he once more asserts 
 a great constitutional principle, and denies the right of 
 the senatorial members of the Council of Appointment to 
 equal authority with himself in the selection of public 
 officers. 
 
 This legislature continued in session until October 7, 
 1777, when, in consequence of the capture of Fort Mont- 
 gomery by the British, it was obliged to discontinue its 
 sessions. 
 
 The following extract from the senate journal, Jan- 
 uary 5, 1778, tells its own story, and shows the agitated 
 condition of the state at that time : 
 
 "About Noon on Tuesday, the 7 Day of October last. 
 News came by Express of the Reduction of Fort Mont- 
 gomery, in the Highlands, and its Dependencies by the 
 enemy: and although this senate thereafter adjourned 
 until Wednesday Morning, the 8 of October last, yet so 
 many Members of the Honorable the House of Assembly 
 absented themselves on military Service, and for the 
 necessary Care of their Families, in Consequence of that 
 Event, that there were not a sufficient Number of them 
 left at Kingston to form a House for Business; which 
 rendered the Meeting of the Senate according to adjourn- 
 ment, useless ; and therefore the Senate ceased to attend 
 on the public Business, until His Excellency the Governor 
 thought proper to convene the legislature of this state, by 
 his proclamation." 
 
 The Council of Safety, appointed by the Provincial 
 Convention, was authorized to act only until a meeting of 
 
582 Constitutional History of New York. 
 
 the legislature; therefore, when the legislature met and 
 was fully organized on the loth of September, 1777, the 
 powers of this council ceased. At its last meeting held 
 on that day it adopted a resolution requesting the Gov- 
 ernor and chancellor to devise and procure a great seal 
 for the state. 
 
 New Council of Safety. 
 
 On the 7th of October, the members of the senate and 
 assembly convened, not as a legislature, but to form a 
 convention to provide for the safety of the state. Pierre 
 Van Cortlandt was chosen president. On the same day 
 this Convention appointed a new Council of Safety, com- 
 posed of the following members : William Floyd, John 
 Morin Scott, Abraham Yates, Johannes Snyder, Egbert 
 Benson, Robert Harper, Peter Pra Van Zandt, Levi 
 Pawling, Daniel Dunscomb, Evert Bancker, Alexander 
 Webster, William B. Whiting, and Jonathan Landon. 
 
 This council was authorized to act when the Conven- 
 tion was not in session, and was vested with "the like 
 power and authorities which were given to the late Coun- 
 cil of Safety;" and each senator, member of assembly, 
 and delegate in Congress was entitled to sit and vote 
 in this council. The governor or president of the senate, 
 when present, was required to preside at the council, and 
 was given a casting vote. 
 
 On the same day the Convention transmitted to Gov- 
 ernor Clinton a copy of the resolution organizing the 
 Convention and creating the Council of Safety, with the 
 following letter : 
 
 Kingston, October 7, 1777. 
 Sir:— 
 
 By the enclosed resolution, your Excellency will per- 
 ceive what steps the legislature have taken to provide for 
 
The First Constitution, 1777. 583 
 
 the safety of the state in the present emergency. The im- 
 possibility of keeping the several members in attendance 
 on so critical an occasion must apologize for the measure. 
 We hope soon to meet you again in our former capacity 
 as members of the senate and assembly ; in the interim you 
 will be pleased to make application to the Council of 
 Safety for such matters and things as may to you appear 
 from time to time necessary. 
 
 Here, again, we see the difficulties that confronted the 
 patriots. They could not even carry on a constitutional 
 government in a constitutional way, but found it neces- 
 sary to resort to an irregular and unconstitutional con- 
 vention composed of the same men as the legislature ; and 
 by the creation of the Council of Safety the powers of 
 the state were delegated to a possible seven men. The 
 excuse given for this action was that it was impossible, or 
 impracticable, to keep a quorum of the members of the 
 legislature together. 
 
 This new Council of Safety was given large legislative 
 and administrative powers. It was more revolutionary 
 than the first council, for that council was an instrument of 
 government created when there was no settled form of gov- 
 ernment, and as a necessary expedient to preserve order 
 and administer affairs until the new government could be 
 set in motion. But when the new Council of Safety was 
 created the state government had been organized. There 
 was a governor, a legislature, and a judiciary already per- 
 forming the functions assigned to them under the Con- 
 stitution and the laws. The legislature, as such, did not 
 create the Council of Safety. It might have passed a law 
 vesting in such a council needed administrative powers 
 for the emergency. But the exigencies were very press- 
 ing, and the occasion was very sudden. The British were 
 already making rapid progress in an attempt to conquer 
 
584 Constitutional History of New York. 
 
 the Hudson river country, and the patriots could not wait 
 fpr the slow formalities of legislation. It is also worth 
 noting, in this connection, that the men in actual control 
 of state affairs had served through several Provincial 
 Congresses, and some of them were in the old Council 
 of Safety. They quite naturally, therefore, turned to 
 that expedient in this time of need. 
 
 But "necessity knows no law." It must be admitted 
 that the right of self-preservation is superior to any 
 statute or constitution; and, in a great emergency like 
 that which the patriots were then compelled to face, with 
 the southern part of the state in control of the enemy, with 
 this enemy making rapid progress toward the north, with 
 their own lives in danger, and their families and firesides 
 subject to attack, the technicalities of a paper constitu- 
 tion could not prevent the use of any available means to 
 protect the state, resist invasion, and preserve the lives 
 and property of the people. 
 
 The new Provincial Convention, acting either directly 
 or through a Council of Safety, was a legitimate exercise 
 of original sovereignty, and a war measure amply justi- 
 fied by the circumstances. The men who resorted to this 
 temporary method of conducting public affairs fully appre- 
 ciated its irregularity. This is manifest from the letter 
 sent by them to Governor Clinton. And the Council of 
 Safety evidently shrank from their unwelcome task, for, 
 on the 2 1 St of November, 1777, the council appointed 
 a committee to confer with the Governor "on the ex- 
 pediency of putting an end to the sessions of this council, 
 either by calling the legislature of this state, or a con- 
 vention thereof." 
 
 On the 27th the committee reported that they had con- 
 ferred with Governor Clinton at New Windsor on the 
 subject of convening the legislature; that he had in- 
 formed them that, on account of the exigencies of the 
 
The First Constitution, IJIJ. 585 
 
 war (he then being in charge of miHtary operations in 
 the Highlands), he could not attend to public business 
 further distant from New Windsor than Poughkeepsie ; 
 that he thought it most expedient to put an end to the 
 session of the Council of Safety by calling a meeting of 
 the legislature very early in the month of January at 
 Poughkeepsie if accommodations could be procured 
 there; and that the committee had ascertained that the 
 "principal inhabitants" of Poughkeepsie had agreed to 
 acccMnmodate the members of the legislature with board. 
 
 The Council of Safety thereupon adopted a resolution 
 recommending that the Governor, "by his proclamation, 
 convene the legislature at Poughkeepsie as early in the 
 month of January as possible. On the 15th of December, 
 1777, Governor Clinton issued a proclamation convening 
 the legislature in session at Poughkeepsie on the 5th of 
 January, 1778. Several members of the legislature met 
 at Poughkeepsie accordingly, but no quorum was present 
 until the 15th. 
 
 The capture of Fort Montgomery by the British early 
 in October practically opened the way for the enemy to 
 proceed up the river. The British improved the oppor- 
 tunity, and sent an expedition which destroyed Kingston, 
 then the third town in population in the state, on the 
 i6th of October. Before this time the Council of Safety 
 had found it unsafe to continue to meet there. The 
 journal shows meetings at different places in Ulster 
 county until the 17th of December, when the council, then 
 in session at Hurley, adjourned to met at Poughkeepsie 
 on the 20th. The council met at Poughkeepsie on the 22d 
 of December, where its sessions were continued from time 
 to time until January 7, 1778, when, according to the 
 journal, the council "adjourned until 3 o'clock this after- 
 noon ;" but there is no record of their meeting again. In 
 the afternoon of that day the Provincial Convention met. 
 
586 Constitutional History of New York. 
 
 This concluded and superseded the Council of Safety. 
 The Convention held its last session on January 14, 1778. 
 On the 15th of January the legislature resumed its ses- 
 sions, and constitutional government was again in full 
 operation. 
 
 Council's Proceedings Validated. 
 
 The last Provincial Convention and Council of Safety 
 had assumed and exercised large administrative, and even 
 legislative, powers. These powers had been exercised in 
 behalf of the state and in the public interest; and, while 
 this Convention and Council of Safety were irregular 
 and unconstitutional bodies, their acts could not be wholly 
 ignored, and clearly could not be repudiated by the legis- 
 lature, whose members had created and given them what- 
 ever vitality they possessed. The legislature, therefore, 
 at its first session in 1 778 thought it proper to enact legis- 
 lation validating the proceedings of the Convention and 
 Council of Safety. 
 
 In February the legislature passed a bill relating to the 
 exportation of certain food products, in which an embargo 
 laid by the last Council of Safety was recognized and con- 
 firmed. This bill was vetoed by the Council of Revision, 
 on objections prepared by Chief Justice John Jay, on the 
 ground that the Council of Safety was unconstitutional, 
 that it had no valid existence, and that the legislature 
 could not ratify its acts. Chief Justice Jay says, in the 
 course of his memorandum, that the bill is inconsistent 
 with the spirit of the Constitution of this state, because 
 it recognizes "the late supposed Council of Safety as a 
 legislative body, when in fact all legislative power is to 
 be exercised by the immediate representatives of the peo- 
 ple, in senate and assembly, in the modes, prescribed by 
 the Constitution." The chief justice argues the matter 
 at some length, suggesting that before the organization of 
 
The First Constitution, 1777. 587 
 
 the state government the people were under the neces- 
 sity of being governed by conventions and committees 
 of safety created by the people themselves, but that such 
 conventions and committees could not be continued under 
 the state government, and be given the power and au- 
 thority vested in the legislature. 
 
 Governor Clinton and Chancellor Livingston con- 
 curred in these objections ; but the bill, with slight modifi- 
 cations, was passed over the veto. This shows that the 
 members of the legislature who, though not in their legis- 
 lative capacity, had created the Council of Safety, in- 
 tended to defend it and its work. This intention is mani- 
 fest in another bill passed on the 4th of April, 1778, rati- 
 fying and confirming generally the acts of the Council of 
 Safety, and providing for indemnity for those who had 
 acted under its authority. 
 
 The following preamble to this bill is a legislative ex- 
 pression of the emergency under which the council was 
 created : 
 
 "Whereas, the legislature of this state, at their late 
 sessions at Kingston were prevented from proceeding on 
 business, by reason that many of their members (officers 
 in the militia) were called into actual service on the ir- 
 ruption of the enemy into this state, in which conjuncture 
 the members of the senate and assembly then present did 
 form themselves into a convention and appointed a Coun- 
 cil of Safety out of their number, with like powers as 
 former conventions and Councils of Safety of this state 
 did heretofore exercise, and to continue so long as the 
 necessities of the state should require ; which appointment 
 of the said convention and Council of Safety at that 
 time was absolutely necessary, and the orders, recom- 
 mendations, and resolutions by them from time to time 
 made have been found greatly beneficial to this state. 
 And whereas, doubts have arisen in the minds of some 
 
588 Constitutional History of New York. 
 
 of the good people of this state, concerning the powers 
 of the said convaition and Council of Safety, notwith- 
 standing the absolute necessity of such appointment, there 
 being no provision made for that purpose in the Consti- 
 tution of this state." 
 
 Then follows the formal act ratifying the proceedings 
 of the council. 
 
 This bill was presented to the Council of Revision on 
 the 4th of April. The council, before considering the 
 bill, sent a communication to the legislature, asking for 
 the orders and resolutions of the Council of Safety which 
 would be confirmed by the pending bill. The assembly, 
 on receipt of this communication, directed its clerk to 
 attend before the Council of Revision with the minutes 
 and proceedings of the Council of Safety; but the records 
 do not show that any further action was taken by the 
 Council of Revision or by the legislature The bill ap- 
 pears as chapter 37 of the Laws of 1778, and it became 
 a law by operation of the clause in § 3 of the Constitu- 
 tion, providing that a bill shall become a law if not acted 
 on by the Council of Revision within ten days. 
 
 Another Council Recommended; Bill Vetoed. 
 
 This subject was again under consideration by the 
 legislature in the fall of 1780. A joint committee was 
 appointed by the legislattu-e to "take into consideration 
 the present critical situation of the country, and to deter- 
 mine the measures necessary to be pursued for the public 
 safety." This committee reported a bill "for the ap- 
 pointment of a council to assist in the administration of 
 the government during the recess of the legislature." 
 The bill was not entered on the journals of the legisla- 
 ture nor of the Council of Revision, and I have not been 
 able to find a copy of it. It was vetoed by the Council 
 
The First Constitution, 1777. 589 
 
 of Revision on the ground that it vested in the proposed 
 council legislative powers which, under the Constitution, 
 are vested in senate and assembly only, and cannot by 
 them be delegated to others; because the bill subjects the 
 governor to the control of the council, and also "because 
 the said bill is not only repugnant to the spirit and letter 
 of the Constitution, but, should the same become a law, 
 would, in the opinion of this council, tend to embarrass 
 government and destroy its present energy." On the 9th 
 of October, 1780, a vote was taken in the assembly on 
 the passage of the bill over the veto, but it did not receive 
 the necessary two thirds. 
 
 The legislature was regularly organized in September, 
 1777, but it passed no laws at that session; and it is a 
 fact worth noting that from the 3d of April, 1775, when 
 the last act of the last Colonial Assembly was passed, to 
 February 6, 1778, when the first act of the state legisla- 
 ture was passed, a period of nearly three years, the colony 
 and state were governed by conventions and committees. 
 With the legislature which convened at Poughkeepsie 
 January 15, 1778, began the regular administration of 
 constitutional government, and the only suggestion of a 
 change of purpose, or attempted delegation of power, 
 was contained in the bill of October, 1780, creating a 
 new Council of Safety, but which, on more mature con- 
 sideration, the legislature decided not to enact into a law. 
 
 Synopsis of Constitution. 
 
 The first Constitution was a brief instrument, and was 
 limited to very few subjects. Some important provi- 
 sions, notably those relating to the Council of Revision 
 and the Council of Appointment, were added while the 
 Constitution was under consideration by the Convention, 
 and we learn from Mr. Jay's correspondence that he 
 intended to suggest other additions, which he thought it 
 
590 Constitutional History of New York. 
 
 would be better to submit in convention than in the first 
 draft, but he was called away by the death of his mother, 
 and during his absence the Constitution was unexpected- 
 ly, and, as he thought, somewhat hastily, adopted. He 
 afterwards expressed great regret that some other sub- 
 jects had not been included. Omitting the preliminary 
 part, consisting of the resolutions adopted by the Third 
 Provincial Congress, providing for the election of the 
 Convention, and the Declaration of Independence, which 
 is quoted in full; the Constitution proper consists of 
 forty-five short sections, or "articles," as they were then 
 termed. The range of subjects treated is limited, and 
 the powers conferred on the new government are quite 
 meagerly expressed. The framers of the instrument 
 seem to have taken the colonial government as they found 
 it, and continued its principal features, while eliminating 
 its royal characteristics. The judicial system of the 
 colony, and also the county and town governments, were 
 continued substantially as they then existed. It became 
 necessary to construct a new legislature and provide a 
 new executive. The skeleton of the new government 
 was then complete, and the remainder of the Constitution 
 either asserts abstract rights, or confers or limits power 
 in matters of administrative detail. 
 
 The abstract rights asserted are few and briefly stated. 
 In substance they are : 
 
 1. All power is derived from the people. This is 
 fundamental in any system of representative popular 
 government. 
 
 2. Each citizen is entitled to full protection in his in- 
 dividual rights ; stating, in substance, the 39th article of 
 Magna Charta. 
 
 3. Each citizen is entitled to the enjoyment of com- 
 plete religious liberty. 
 
The First Constitution, 17 IT- 591 
 
 4. The right of trial by jury shall remain inviolate 
 forever. 
 
 5. General, but not universal, suffrage was established, 
 and the legislature was authorized to provide for the use 
 of ballots at elections, instead of voting viva voce, which 
 was then the practice. 
 
 Three general departments of government were estab- 
 lished, namely, the legislative, executive, and judicial. 
 These three divisions were already familiar, both from 
 English precedents, and from colonial experience for 
 nearly a century. The influence of tradition and custom 
 is shown by the unwillingness of the Constitution makers 
 to vest in these departments the distinct and independent 
 powers naturally belonging to them. They did not seem 
 to appreciate fully the importance of a clear sq)aration 
 of the powers of the three great departments into which 
 the government was divided. Subsequent experience 
 and development have marked these lines of distinction 
 with much more clearness than was apprehended by the 
 frarners of the first Constitution. There seems to have 
 been an unwillingness to trust either the legislative or 
 the executive department with its appropriate powers 
 under a proper distribution of constitutional authority. 
 The Constitution shows a manifest intention to reserve 
 to and vest in each department some authority over the 
 others. In a representative constitutional government, 
 as now understood, the legislature is the supreme law- 
 making power, subject to the possible check of an execu- 
 tive veto, which may sometimes prevent hasty, ill-con- 
 sidered, and unwise legislation; but even this check may 
 be overcome by the legislature, if a given number of its 
 members, arbitrarily fixed at two thirds, shall be in favor 
 of enacting the statute, notwithstanding executive objec- 
 tions. The executive is charged with the duty of execut- 
 ing the laws, with only the limited veto check on legis- 
 
592 Constitutional History of New York. 
 
 lation. But both the legislative and executive branches 
 are subject to indirect control or restraint, and may be 
 kept in the path of constitutional duty, by the judiciary ; 
 for this branch of the government has the exalted func- 
 tion of determining whether a given statute violates the 
 fundamental law as expressed in the Constitution, thus 
 testing every statute by the principles established by the 
 people for their government. 
 
 So clearly have these principles, specially applicable to 
 each department, been enunciated in recent years, that it 
 is now almost axiomatic that the supreme legislative 
 power is vested in the senate and assembly, and that this 
 legislative power cannot be delegated, except as author- 
 ized by the Constitution itself; that the functions of the 
 governor are executive, and not legislative, except to the 
 extent of the veto power, and not judicial, except gen- 
 erally in determining questions affecting removals from 
 office, and in the exercise of the pardoning power; and 
 that the functions of the courts are judicial only, and not 
 administrative. The framers of the first Constitution, 
 perhaps from a lack of an apprehension of these prin- 
 ciples, now so familiar, and possibly, also, from a lack of 
 experience necessarily incident to pioneer conditions, 
 combined these functions in the several departments in 
 a manner which would not now be tolerated in framing 
 a well-ordered scheme of representative government. 
 They not only made the legislature the lawmaking 
 power, but they vested it with executive functions 
 through the Council of Appointment, composed of four 
 senators chosen annually by the assembly. They gave 
 the higher courts, not only judicial powers, but also 
 authority over legislation through the Council of Revi- 
 sion, composed of the governor, the chancellor, and the 
 judges of the supreme court. By these two contrivances 
 the power of the governor was limited in two very im- 
 
The First Constitution, 1777. 593 
 
 portant particulars ; namely : He was deprived of the full 
 veto power, for he might be overruled by the judges in 
 the Council of Revision ; and he was deprived of the re- 
 sponsibility for official appointments, by being made sub- 
 ject to the control of the Council of Appointment. 
 
 The Constitution contains a few details concerning the 
 separate powers of the senate and assembly, including 
 the power of the assembly to select the members of the 
 Council of Appointment, and to present articles of im- 
 peachment. The legislature was to elect the state treas- 
 urer; it was also given control over contracts with In- 
 dians; and might naturalize aliens; but this right of 
 naturalization was soon superseded by the Federal Con- 
 stitution. The legislature was prohibited from passing 
 acts of attainder, and from instituting any courts, except 
 those which proceeded according to the common law. 
 Terms of judicial officers were established, and provision 
 was made for the choice of state, county, and town offi- 
 cers. The English common law was continued, and 
 English grants were confirmed. Provision was also made 
 for a state militia ; and a curious provision was inserted, 
 by which clergymen were excluded from the right to 
 hold office. 
 
 It will be observed that the first Constitution was quite 
 limited in its scope, and many subjects now deemed im- 
 portant were omitted. It was, however, sufficiently 
 elastic to permit the expansion and growth of a great 
 state, and it is a high tribute to the patience, good sense, 
 and patriotism of the men who framed it, and of the 
 men who administered the government under it through 
 a third of the history of the state, that the only amend- 
 ment in forty-five years was for the purpose of reducing 
 and limiting the number of members of the senate and 
 assembly. 
 
 The Jays, the Livingstons, the Morrises, the Clintons, 
 Vol. I. Const. Hist.— 38. 
 
594 Constitutional History of New York. 
 
 the Gansevoorts, the Schuylers, the Van Cortlandts, the 
 Van Rensselaers, the Roosevelts, the Spencers, the Lan- 
 sings, the Lewises, the Ten Broecks, Duane, Scott, Kent, 
 Hamilton, Tompkins, Burr, and others who constructed, 
 set in motion, and maintained this simple machinery of 
 government, did not need elaborate descriptions or limi- 
 tations of power. They had a Constitution which gave 
 them the right of self-government, and they knew how 
 to use that right judiciously. There was placed in their 
 hands a state to govern and improve, and they appre- 
 ciated its possibilities and the importance of the trust 
 reposed in them. The Constitution was sufficient for 
 their needs. They were almost wholly unrestrained, for 
 it will be noted that the restrictions in the first Consti- 
 tution related chiefly to immaterial subjects which soon 
 became obsolete. They did not need to tie their own 
 hands, for they could trust themselves. The simple 
 brevity, the "unsuspecting simplicity," of the first Con- 
 stitution is in striking contrast to the prolixity of some 
 modern Constitutions, which evince a misapprehension 
 of the real purpose of a written constitution, namely, to 
 state principles of government in general terms, and not 
 with the fluctuating detail necessarily incident to statutes 
 intended to meet shifting conditions of society or ad- 
 ministration. Under this Constitution, despite its limi- 
 tations, the state had a remarkable development. It wit- 
 nessed the growth and enlargement of our unsurpassed 
 system of jurisprudence, molded by the genius of Kent, 
 with the aid of his distinguished associates in the judi- 
 ciary. Under it were established the university and the 
 common school; and colleges, academies, and libraries 
 were notirished and encouraged. The care of the poor 
 and other unfortunates was provided for by a system of 
 administration which in its essential features has con- 
 tinued to this day. A system of taxation was estab- 
 
The First Constitution, 1777. 595 
 
 lished, the statute law was frequently revised, counties, 
 cities, towns, and villages were created, internal admin- 
 istration adequate for the needs of the time was provided 
 for the different branches of state and local government ; 
 and under this Constitution was begun the development 
 of a plan for the construction of the great canals, which 
 have since occupied such a large place in public affairs. 
 Further observations on the first Constitution will be 
 found at the end of the chapter on the Constitution of 
 1 82 1 which superseded the original instrument. I have 
 there quoted the opinions of Chancellor Kent, Governor 
 De Witt Clinton, and Governor Yates concerning the 
 value, scope, and character of the first Constitution. 
 
CHAPTER III. 
 
 The Convention of 1801. 
 
 The Constitutional Convention of 1801 had its origin 
 in differences of opinion concerning the proper construc- 
 tion of § 23 of the Constitution, which provided for a 
 Council of Appointment. The section is as follows : 
 
 "That all officers other than those who, by this Constitu- 
 tion, are directed to be otherwise appointed, shall be ap- 
 pointed in the manner following, to wit : The assembly 
 shall, once in every year, openly nominate and appoint one 
 of the senators from each great district, which senators shall 
 form a council for the appointment of the said officers, of 
 which the governor for the time being, or the lieutenant gov- 
 ernor, or the president of the senate (when they shall re- 
 spectively administer the government), shall be president, 
 and have a casting voice, but no other vote; and, with the 
 advice and consent of the said council, shall appoint all the 
 said officers; and that a majority of the said council be a 
 quorum; and further, the said senators shall not be eligible 
 to the said council for two years successively." 
 
 This council was an important part of the state gov- 
 ernment until abolished by the Constitution of 182 1, 
 which took effect on the 31st of December, 1822. The 
 council, therefore, existed more than forty-five years; 
 and while it has gone into history, probably never to 
 return as a feature of our constitutional machinery, it 
 played such an important part in the early history of the 
 state, especially its political history, that it should receive 
 here more than a passing notice. 
 
 The first constitution-makers had not gone very far 
 [596] 
 
The Convention of 1801. 597 
 
 in the direction of choosing officers by popular election. 
 Most of the officers were chosen by appointment; and 
 we shall see, as we note the development of our consti- 
 tutional system, how slowly the theory of ejections by 
 the people made its way. The framers of the first Con- 
 stitution treated this subject from the point of view of 
 their own experience, and also in accordance with the 
 custom of that time. 
 
 In the chapter on the first Constitution, I have referred 
 to a letter written by John Jay to Robert R. Livingston 
 and Gouverneur Morris, dated at Fishkill, April 29, 1777, 
 nine days after the Constitution was adopted, from which 
 it appears that the original draft of § 22, afterwards 
 § 23, provided for appointment of officers by the legis- 
 lature, on the nomination of the governor, and that this 
 provision was generally disapproved by the Convention. 
 The original form of the section has been given in the 
 previous chapter. Several plans were proposed and dis- 
 cussed by members out of session, and finally the section 
 as it stands was prepared by Mr. Jay, proposed by him 
 in convention, and adopted. Having written the section, 
 his opinion must have great weight in determining its 
 proper construction; and he alwa3-s claimed that it gave 
 the governor the exclusive right of nomination. It may 
 be well to note here that while the section, as proposed 
 by Mr. Jay, was under consideration by the Convention, 
 an amendment was offered by William Harper, provid- 
 ing for the appointment of four senators, to compose a 
 council of appointment, "which council shall appoint all 
 the said officers." This amendment did not give the 
 governor any authority in the council, and he could not 
 nominate or appoint any officer; that power was to be 
 vested solely in the council. 
 
 It will be seen by the construction given to § 23 by 
 the Convention of 1801 that the senators in the council 
 
598 Constitutional History of New York. 
 
 possessed practically the power which they would have 
 possessed under this proposed amendment; for under 
 that construction they controlled the council, making 
 nominations and appointments, and the governor was 
 obliged to issue commissions accordingly. The Conven- 
 tion rejected the Harper amendment, leaving the section 
 as proposed by Mr. Jay. The Convention that adopted 
 the Constitution construed the section in the ordinance 
 of the 8th of May, 1777, providing for the appointment 
 of certain officers, and instituting the new government, 
 in which ordinance it is declared that "the appointment 
 of officers in this state is, by the Constitution thereof, 
 vested in the governor, by and with the advice and con- 
 sent of the Council of Appointment." This construction 
 is quite significant, but it seems to have been overlooked 
 in the controversy that arose over the section more than 
 twenty years afterwards. 
 
 The records of the council do not show who made 
 nominations, but it seems that Governor Clinton, up to 
 1794, exercised the sole power of nomination, "although 
 doubts had arisen previously as to this power." The 
 appointments are evidenced by a resolution entered on 
 the minutes "that be and he hereby is 
 
 appointed" (naming the office). The commissions were 
 signed by the Governor, and recited, among other things, 
 that, by virtue of statute or other authority, "we have 
 nominated, constituted, and appointed, and by these 
 presents do nominate, constitute, and appoint." One of 
 these commissions, issued in February, 1779, contains 
 the following attestation : "Witness our trusty and well- 
 beloved George Clinton, Esq., Governor of our said state, 
 General and Commander in Chief of all the militia, and 
 Admiral of the navy of the same, by and with the advice 
 and consent of the Council of Appointment," followed 
 by the date and signature; and this was afterwards the 
 
The Convention of 1801. 599 
 
 usual form. The form of the commission would indi- 
 cate a nomination by the Governor and confirmation by 
 the council; and this, as already stated, seems to have 
 been the usual practice, although the records do not show 
 the fact of a nomination by the Governor. The form of 
 statutes creating offices during the early state history 
 should not be overlooked, for they show a legislative 
 construction of the constitutional provision. Thus, in 
 1779, the Governor was authorized by statute, "by and 
 with the advice and consent of the Council of Appoint- 
 ment, to nominate and appoint" a state clothier. Many 
 other offices were created during the next twenty-five 
 years, with a like provision relative to appointment and 
 confirmation; but the practice of the council does not 
 seem to have been changed in consequence of these 
 special acts, nor does it appear that the Governor in fact 
 actually nominated an officer, and that his nomination 
 was confirmed by the council. I think, without excep- 
 tion, the commissions during the existence of the council 
 recited that the appointments were made "by and with 
 the advice and consent of the Council of Appointment," 
 although, by the declaration of the Convention of 1801, 
 any member of the council might make a nomination. 
 It will be observed that the early statutes providing for 
 appointment of an officer by the governor and council 
 used the form followed in modern statutes which provide 
 for the appointment by the governor and senate; but in 
 these later days the senate would hardly claim a concur- 
 rent right of nomination. 
 
 On the 29th of January, 1794, Egbert Benson was 
 appointed puisne judge of the supreme court ,on the 
 nomination of the council, and against the protest of the 
 Governor, who claimed the exclusive right to make all 
 nominations. John Jay was elected governor in the 
 spring of 1795, while he was abroad as an envoy of the 
 
6oo Constitutional History of New York. 
 
 United States. He reached New York on his return, 
 May 28tli; he resigned the office of chief justice of the 
 United States the 29th of June, 1795, and on the ist of 
 July took the oath of office as governor of New York. 
 In his speech to the legislature at the opening of the 
 session, January, 1796, he made the following reference 
 to the subject of appointments : "There is an article in 
 the Constitution, which, by admitting of two different 
 constructions, has given rise to opposite opinions, and 
 may give occasion to disagreeable contests and embar- 
 rassments. The article I allude to is the one which 
 ordains that the person administering the government 
 for the time being shall be president of the Council of 
 Appointment, and have a casting voice, but no other 
 vote; and, with the advice and consent of the said coun- 
 cil, shall appoint all the officers which the Constitution 
 directs to be appointed. Whether this does, by just con- 
 struction, assign to him the exclusive right of nomina- 
 tion, is a question which, though not of recent date, still 
 remains to be definitely settled. Circumstanced as I am 
 in relation to this question, I think it proper to state it, 
 and to submit to your consideration the expediency of 
 determining it by a declaratory act." He did not men- 
 tion the subject again in his communications to the leg- 
 islature until February 26, 1801, when the relations be- 
 tween the Governor and the majority of the council had 
 become so strained that the business of the council was 
 practically at a standstill. This condition grew out of 
 incidents that occurred on the nth and 24th of February. 
 On the I ith the Governor nominated eight candidates 
 for the office of sheriff of Dutchess county, but they were 
 rejected by the council. On the 24th the Governor pro- 
 posed that all nominations be entered on the minutes of 
 the council. This proposition was rejected by a major- 
 ity of the council, on the grounds that it had not been 
 
The Convention of 1801. 601 
 
 the custom to enter the nominations on the minutes, that 
 such entry would unnecessai-ily "swell the minutes," that 
 the law did not require such entry, "and because the 
 council do not admit, but deny, that the right of nomi- 
 nation exists in the Governor exclusively, which His 
 Excellency claims and insists upon." 
 
 The council was composed at this time of DeWitt 
 Clinton, Ambrose Spencer, Robert Roseboom, and John 
 Sanders. 
 
 The issue was further intensified at the same meeting 
 when Mr. Clinton nominated a candidate for the office 
 of sheriff of Orange county. The minutes state that 
 Governor Jay, "claiming the exclusive right of nomina- 
 tion, observed that it would be proper for him to con- 
 sider what ought to be his conduct relative" to the nom- 
 ination made by Mr. Clinton. He declined to present 
 the nomination to the council, which soon adjourned, 
 and did not meet again while Mr. Jay was governor. 
 
 Governor Jay^s Special Message. 
 
 Governor Jay sent a special message to the assembly 
 on the 26th of February, 1801, and the same message 
 to the senate on the 27th, in relation to the Council of 
 Appointment, reciting the differences which had existed 
 between the council and Governor, not only during his 
 own term, but during the term of his predecessor. Gov- 
 ernor Clinton. Governor Jay claimed that under the 
 Constitution the governor had the exclusive right of 
 nomination. Some members of the Council of Appoint- 
 ment claimed a concurrent right of nomination. This 
 the Governor denied, and in this message he recommends 
 that it be settled in some way, either by a declaratory act 
 of the legislature, or by judgment of law. 
 
 On the 27th of February the assembly adopted a pre- 
 amble referring to the Governor's message of the pre- 
 
6o2 Constitutional History of New York. 
 
 vious day, and the questions presented by it, which was 
 followed by a resolution declaring "as the sense of this 
 house, that the legislature have no authority to interpose 
 between the Executive and the members of the Council 
 of Appointment, touching the right of nomination, or to 
 pass a declaratory act, defining the powers of the said 
 council, or prescribing the manner in which the same 
 shall be exercised." 
 
 On the 7th of March the senate adopted a concurrent 
 resolution for a joint committee of the two houses to 
 inquire and report what had been the practice of the 
 Council of Appointment concerning nominations; but 
 the assembly did not concur in this resolution. 
 
 On the 1 8th of March a communication relating to 
 this subject was sent to the assembly by a majority of 
 the Council of Appointment. It was signed by DeWitt 
 Clinton, Ambrose Spencer, and Robert Roseboom. 
 
 Mr. Clinton, then a young man, had recently entered 
 public life, and was at the beginning of a career which 
 proved alike honorable to himself and to the state. At 
 this time he was very persistent in pressing the claims 
 of the council to a concurrent right of nomination; but 
 he afterwards had abundant reason to change his views, 
 when, as governor, the council was frequently opposed 
 to him politically, and he was obliged to issue commis- 
 sions to his political opponents. Mr. Spencer was serv- 
 ing his second term in the senate, and was soon after- 
 wards appointed attorney general. A little later he was 
 appointed associate justice, and afterwards chief justice, 
 of the supreme court. 
 
 In this communication these members of the council 
 stated at length their views on the conflicting claims of 
 the Governor and council to the right of nomination. 
 They denied the Governor's exclusive right of nomina- 
 tion, and asserted that not only by the Constitution, but 
 
The Convention of 1801. 603 
 
 by the practice of the council, the council had a concur- 
 rent right of nomination, and that appointments must be 
 made by the council as a whole, including the Goverrior, 
 who had only a casting voice. It also appeared from this 
 communication that there were political differences be- 
 tween the Governor and the Council of Appointment; 
 that he nominated to office members of his own party, 
 whose nominations had been rejected by the council, and 
 had refused to consider nominations made by members 
 of the council. 
 
 Convention Recommended. 
 
 On the 6th of April the legislature passed an act rec- 
 ommending a convention for the purpose of considering 
 the question of the construction of § 23 of the Consti- 
 tution, and also that part of the Constitution relating to 
 the number of members of the senate and assembly. 
 
 On the same day the senate adopted a preamble re- 
 ferring to the differences between the Governor and 
 council, reciting "that the legislature cannot now adopt 
 or concur in any measure to produce a seasonable and 
 legal decision on the right of nomination; and that the 
 right has been uniformly claimed and generally exercised 
 as well by the late as the present Governor." Then fol- 
 lows a concurrent resolution suggesting "that it would 
 be proper for the members of the Council of Appoint- 
 ment to signify to His Excellency, the Governor, their 
 willingness to waive the aforesaid question relative to 
 the right of nomination, and to proceed in the business 
 of the council in the manner heretofore generally prac- 
 tised, until a legal decision can be had on that question." 
 While this resolution was pending, DeWitt Clinton of- 
 fered as a substitute a pi-eamble reciting among other 
 things, "that great and extensive injuries may result to 
 the community from these differences, whereby the house 
 
6o4 Constitutional History of New York. 
 
 of assembly may deem it their duty to interfere in the 
 capacity of the grand inquest of the state, and to insti- 
 tute an impeachment against the dehnquent or delin- 
 quents before the court for the trial of impeachments," 
 and that the legislature, by passing a law for a conven- 
 tion, had adopted the only measure in their power to 
 correct the evil. This preamble was followed by a reso- 
 lution to the effect that in view of the possible presen- 
 tation of the matter to the court for the trial of impeach- 
 ments, of which the senators were members, they could 
 not now properly express an opinion on either side of 
 the controversy. Mr. Clinton's resolution was rejected. 
 He then offered another resolution to the effect that it 
 would be proper for the Governor to convene the coun- 
 cil, and to signify to them his willingness so to accom- 
 modate with them respecting the right of nomination as 
 to prevent a further interruption of appointments until 
 a constitutional decision could be had on that question. 
 This resolution was also rejected. 
 
 The assembly declined to concur in the senate reso- 
 lution, but on the 8th adopted another resolution re- 
 iterating the views expressed by it on the 27th of Feb- 
 ruary, with the following significant preamble : 
 
 "Whereas, It appears to this House from two several- 
 messages of His Excellency, the Governor, and from a 
 communication of a majority of the members of the 
 Council of Appointment, that the said council have not 
 been convened since the 24th of February last for the 
 performance of the duties committed to them by the 
 Constitution ; and that a controversy has arisen between 
 His Excellency and the council respecting the right of 
 nomination, which has created a new and unprecedented 
 crisis in our public affairs; that notwithstanding specu- 
 lative differences may hitherto have existed between the 
 former governor and former councils on this subject, 
 
The Convention of 1801. 605 
 
 yet, that in practice, the business of appointments was 
 never suspended ; and that the present is the first council, 
 under the present Governor's administration, who ever 
 experienced any embarrassments in the execution of their 
 official duties : 
 
 "And whereas. By the Constitution and laws of this 
 state, at fixed periods certain appointments are enjoined 
 and required to be made, yet the judges and justices of 
 several counties, the mayors of the four cities, eight 
 sheriffs, the auctioneers of this city, and a number of 
 other officers, have not been appointed at the times pre- 
 scribed by the said Constitution and laws : 
 
 "And whereas, A high responsibility must rest on 
 His Excellency or the council, and such injurious conse- 
 quences may result as will induce the next house of 
 assembly to prefer an impeachment against the delin- 
 quent or delinquents ; and whereas, the senate principally 
 compose the court for the trial of impeachments; and 
 whereas, the legislature have, by passing a law calling 
 a convention, made the only provision in their power for 
 the correction of this evil : therefore. Resolved, That this 
 House do persist in their said resolution." 
 
 It appears from Hammond's Political History of New 
 York (vol. I, 157) and also from Pellew's Life of John 
 Jay (p. 298) that, while the issue with the council was 
 pending. Governor Jay requested the opinion of the 
 chancellor and judges of the supreme court concerning 
 the construction of § 23, "which they unanimously de- 
 clined giving, on the ground that the expression of an 
 opinion by them was not within the scope of their official 
 duties, but entirely extrajudicial." 
 
 It has already been noted that the assembly expressed 
 the opinion that the legislature had no power to deter- 
 mine the construction of § 23 by a declaratory act, and 
 the senate seems to have taken the same view. It does 
 
6o6 Constitutional History of New York. 
 
 not appear that any effort was made to procure a solution 
 of the problem by the other method suggested by Gov- 
 ernor Jay, namely, a judicial decision. The legislature 
 adopted an entirely different course, and provided for a 
 convention to determine the proper construction of t'le 
 disputed section. 
 
 The first Constitution did not contain any provision 
 for its own amendment, nor for calling future constitu- 
 tional conventions. The legislature of 1801 could not 
 absolutely direct that a convention be held, but passed a 
 law recommending a convention for the purposes therein 
 mentioned. This act, chapter 159, authorized and pro- 
 posed the election of delegates to a convention to con- 
 sider two features of the Constitution, — namely, that 
 relating to the number of members of the senate and 
 assembly, and the section relating to the Council of Ap- 
 pointment. It will be observed that the people were not 
 given an opportunity to express their judgment on the 
 question of holding a convention. While the bill was 
 pending an amendment was once agreed to in the assem- 
 bly giving this right, but later it was abandoned, and 
 under the law the people were only given power to elect 
 delegates. The people, who might have objected to such 
 a convention, had no opportunity to express their objec- 
 tion, except by declining to vote for delegates, and this 
 meant nothing, for the persons who received votes as 
 delegates would be entitled to sit, if regularly chosen, 
 even if the majority of the people had been opposed to 
 a convention. We shall see in the next chapter that a 
 bill passed in 1820 for a convention; without a previous 
 submission of the question to the people, was vetoed by 
 the Council of Revision on objections prepared by Chan- 
 cellor Kent, then a member of the council. In this 
 opinion he calls attention to the act of 1801, and dis- 
 tinguishes it from the act then under consideration on 
 
The Convention of 1801. 607 
 
 the ground that it conferred on the delegates power to 
 determine two questions only; one of which, that relat- 
 ing to the Council of Appointment, was one of construc- 
 tion, and not of amendment ; but he expressed the doubt 
 whether a convention called to change the legislature 
 was constitutional unless previously authorized by the 
 people. Chancellor Kent, then an associate justice of 
 the supreme court, was a member of the Council of Re- 
 vision in 1 80 1, but he and Chancellor Livingston were 
 both absent when the convention bill was presented to 
 the council, and it does not appear that there was any 
 objection to it. 
 
 In addition to the question relating to the construction 
 of § 23, the act conferred on the Convention power to 
 consider that part of the Constitution "respecting the 
 number of senators and members of assembly, and to 
 reduce and limit the number as the Convention may 
 deem proper." 
 
 The senate was originally composed of twenty-four 
 members, and the assembly of seventy members, and 
 provision was made for an increase in each branch at 
 stated periods, until the maximum should be reached, 
 which was fixed at one hundred senators and three hun- 
 dred members of assembly. The increase in member- 
 ship had apparently been more rapid than was at first 
 anticipated. Governor Jay, in his speech to the legisla- 
 ture at the opening of the session, which began Novem- 
 ber 4, 1800, called attention to this increase, and recom- 
 mended a convention to consider the question of the 
 number of members of the senate and assembly. This 
 seems to have been the only recommendation on the sub- 
 ject, and it is probable that a convention would not have 
 been called at that time for the sole purpose of consider- 
 ing the number of members of the legislature ; but when 
 a convention seemed necessary to settle the controversy 
 
6o8 Constitutional History of New York. 
 
 over the Council of Appointment, the subject of the leg- 
 islature was included. At that time the senate had in- 
 creased to forty-three members, and the assembly to one 
 hundred and twenty-six members. 
 
 The Convention. 
 
 The delegates to the Convention of 1801 were required 
 to meet in the courthouse in the city of Albany on the 
 second Tuesday of October. They met accordingly on 
 October 13. The following is the list of delegates by 
 counties : 
 
 Albany. — John V. Henry, Daniel Hale, Leonard 
 Gansevoort, Johan Jost Dietz, Peter West, S. Van Rens- 
 selaer, Josiah Ogden Hoffman, Abraham Van Ingen. 
 
 Cayuga. — Silas Halsey. 
 
 Chenango. — Stephen Hoxie, John W. Buckley. 
 
 Clinton and Essex. — Thomas Tredwell. 
 
 Columbia. — Alexander Coffin, Benjamin Birdsall, 
 Moses Younglove, Thomas Trafford, James I. Van Alen, 
 Stephen Hogeboom. 
 
 Delaware. — Roswell Hotchkis, Elias Osbom. 
 
 Dutchess. — Peter Heusted, Jonathan Akin, J. Van 
 Benthuysen, T. W. Van Wyck, Edmond Parlee, Isaac 
 Bloom, Ithamer Weed, Joseph Thorn, Smith Thompson, 
 Caleb Hazen. 
 
 Greene. — Marton G. Schuneman, Stephen Simmons. 
 
 Herkimer. — Evans Wherry, M. B. Tallmadge, George 
 Rosecrantz. 
 
 Kings. — John Hicks. 
 
 Montgomery. — Thomas Sammons, Nathaniel Camp- 
 bell, Peter Waggoner, Jun., Caleb Woodworth, Jonathan 
 Hallett, John Herkimer. 
 
The Convention of 1801. 609 
 
 New York. — James Nicholson, William Edgar, Sol- 
 omon Townsend, George Clinton, Jun., Archibald Kerly, 
 Joshua Barker, Maturin Livingston, John Mills, Peter 
 H. Wendover, William Van Ness, Nicholas DePeyster, 
 Daniel D. Tompkins, John Bingham. 
 
 Oneida. — ^James Dean, Bezaleel Fisk, Henry Hunt- 
 ington. 
 
 Onondaga. — Moses Carpenter. 
 
 Ontario and Steuben. — Moses Atwater, John Knox. 
 
 Orange. — Aaron Burr, Peter Townsend, Arthur 
 Parks, James Clinton, John Steward. 
 
 Otsego. — David Shaw, James Moore, Daniel Hawks, 
 Luther Rich. 
 
 Queens. — John Schenck, John W. Seaman, DeWitt 
 Clinton, James Rayner. 
 
 Rensselaer. — Cornelius Lansing, Jacob Yates, Jona- 
 than Rouse, John Ryan, Wm. W. Reynolds, Jonathan 
 Niles. 
 
 Richmond. — Joseph Perine. 
 
 Rockland. — Peter Taulman. 
 
 Saratoga. — John Thompson, Samuel Lewis, Adam 
 Comstock, D. L. Van Antwerp, Beriah Palmer. 
 
 Suffolk. — William Floyd, Joshua Smith, Jun., Ezra 
 L'Hommedieu, Samuel L'Hommedieu. 
 
 Tioga. — John Patterson. 
 
 Ulster. — Abraham Schoonmaker, Anning Smith, John 
 Cantine, Lucas Elmendorf. 
 
 Washington. — Edward Savage, Solomon King, Solo- 
 mon Smith, John Vemor, Thomas Lyon, John Gale. 
 
 Westchester. — Jonathan G. Tompkins, Pierre Van 
 Cortlandt, Jun., Israel Honeywell, Ebenezer White, 
 Thomas Ferris. 
 
 Aaron Burr, then Vice President of the United States, 
 was a delegate, and was chosen president of the Con- 
 vention. DeWitt Clinton, a member of the Council of 
 
 Vol. I. Const. Hist. — 39. 
 
6io Constitutional History of New York. 
 
 Appointment, was also a delegate. Daniel D. Tompkins 
 began his public career as a delegate to this Convention. 
 Smith Thompson, afterwards a justice of the supreme 
 court of the state and of the United States, was also a 
 delegate. 
 
 The Convention at once addressed itself to the task 
 committed to it, and completed its labors on the 27th of 
 October. The result of its deliberations appears in five 
 paragraphs, four of which relate to the legislature; one, 
 the last, determines the construction of the disputed sec- 
 tion relating to the Council of Appointment. The 
 amendments permanently fixed the number of senators 
 at thirty-two. The assembly was given one hundred 
 members, and provision was made for a possible increase 
 to one hundred and fifty, by additions to be made after 
 each census. 
 
 The principal subject of consideration was the con- 
 struction to be given tc;) article 23. A motion for a con- 
 struction of the article giving the senators the exclusive 
 right of nomination was defeated by a vote of 93 to 6. A 
 motion to give the Governor the exclusive right of nomi- 
 nation was defeated, but the journal does not give the 
 vote. 
 
 The resolution of the Convention as finally adopted 
 declares that under the "true construction" of the article 
 "the right to nominate all officers other than those who, 
 by the Constitution, are directed to be otherwise ap- 
 pointed, is vested concurrently in the person administer- 
 ing the government of this state for the time being, and 
 in each of the members of the Council of Appointment." 
 This resolution was adopted by a vote of 86 to 14. 
 Daniel D. Tompkins voted in the negative; and twenty 
 years afterwards, in the Constitutional Convention of 
 1821, he referred with apparent self-satisfaction to this 
 vote. The large vote in favor of the resolution is ex- 
 
The Convention of 1801. 611 
 
 plained by the fact that each of the two great political 
 parties of that day had committed itself in favor of 
 nominations by the members of the council, — the Fed- 
 eralist, in the winter of 1794, and the Republicans, in 
 1801. 
 
 It has already been noted that the convention which 
 framed the Constitution had given this provision a dif- 
 ferent construction, but in the partisan struggle for power 
 at the beginning of the last century the opinions of the 
 authors of the Constitution seem to have been over- 
 looked or ignored. Under the construction given 
 by this Convention the council became a pow- 
 erful and sometimes a very objectionable political 
 machine, and at the time of its abolition, twenty- 
 one years later, it wielded a patronage includ- 
 ing nearly 1 5,000 officers, with 'an aggregate salary 
 list of one million dollars. It often dispensed patronage 
 with a high hand, making appointments and removals 
 at will; it reduced the dignity and responsibility of the 
 governor, so that, instead of being the chief executive 
 of the state, he had only a casting vote in this appointing 
 body, and only one fifth of the power of making nomi- 
 nations. 
 
 The plan of this council, as devised by Mr. Jay, was 
 reasonable; and if it had been administered as intended, 
 it might have continued as a permanent feature in our 
 Constitution. We have adopted, as a substitute for this 
 plan, the confirmation of the governor's appointments 
 by the state senate, where confirmation is required at all, 
 and have given the governor the absolute power of ap- 
 pointment without confirmation, in a large number of 
 cases. Mr. Jay's plan contemplated a joint responsibility 
 for appointments, to be shared by the governor and the 
 legislature, by providing a council composed of four 
 senators, distributed geographically through the state. 
 
6i2 Constitutional History of New York. 
 
 with powei- only to confirm or reject nominations by the 
 governor. The whole legislature was charged with a 
 duty and responsibility in the matter by requiring the 
 assembly to choose the council from the senator's, thus 
 directly or indirectly bringing both branches of the legis- 
 lature into cooperation with the governor in making 
 appointments ; but the efficiency of the plan was destroyed 
 by the construction given to the article by the Convention 
 of 1801. 
 
 The evolution of this council, and its final destruction, 
 without a dissenting vote, by the Convention of 1821, 
 shows that even the cohesive power of patronage as a 
 political force must yield to higher principles of consti- 
 tutional government when it is discovered that the dis- 
 pensing of such patronage by an unrestrained and irre- 
 sponsible body is inimical to the best interests of the 
 state. 
 
CHAPTER IV. 
 
 The Second Constitution, 1821. 
 
 The evolution of our Constitution has brought it to a 
 condition where amendments are comparatively easy. 
 The rule requiring a vote by the people once every twenty 
 years, or oftener, as the legislature may provide, to de- 
 termine whether a convention shall be called to revise 
 the Constitution, affords frequent opportunities for con- 
 sidering the Constitution as a whole; while, by another 
 provision, the legislature may, at any time, submit to the 
 people specific propositions for amendment, without con- 
 sidering the whole instrument. This provision furnishes 
 an easy method of altering the Constitution to meet new 
 conditions; indeed, the method is rather too easy, for it 
 affords opportunity for frequent attempted changes in 
 the fundamental law; and if the Constitution, for any 
 reason, happens to be unsatisfactory to a given class of 
 people, and they find that they cannot do all that they 
 think they wish to do, under the existing Constitution, 
 they immediately seek to amend it, as if it were a statute, 
 not possessing permanent character. The ease with 
 which we may now propose amendments is in marked 
 contrast to the difficulties surrounding the subject of 
 constitutional changes during the first forty-five years of 
 our history. 
 
 It has already been noted that the first Constitution 
 contained no provision for its own amendment. The 
 legislature could not, as it may now do, submit to the 
 people propositions for specific amendments, nor could 
 
 [613] 
 
6i4 Constitutional History of New York. 
 
 it direct that a convention be held to consider amend- 
 ments, or a general revision. It could only recommend 
 a convention ; and even this it could not do without first 
 submitting the question to the people, if the convention 
 were to be given general power to revise the entire Con- 
 stitution. 
 
 A brief sketch of the various attempts to amend the 
 first Constitution will show how reluctant the people 
 were to call conventions, or engage in a general revision 
 of the- Constitution. The Convention of 1801 probably 
 would not have been called at that time had it not been 
 for the trouble over the Council of Appointment, for 
 there was no other subject on which there had been any 
 serious demand for a change in the Constitution. True, 
 the Governor had recommended a convention for the 
 purpose of limiting the number of members of the legis- 
 lature, but at that time the number had not, in either 
 branch, reached one half the limit fixed by the Consti- 
 tution. The mistake in construing the provision of the 
 first Constitution relative to the powers of the Council of 
 Appointment, which mistake seems to have been due 
 largely to partisan ambition, led to a convention which 
 fixed this mistaken construction for twenty-one years, 
 resulting in constant and growing annoyance to the good 
 people who wished to administer the government on 
 correct principles, free from the corrupting influence of 
 partisan intrigue. 
 
 The breach between Governor Jay and the Council of 
 Appointment occurred near the close of his second term, 
 and on the accession of his successor. General George 
 Clinton, the council resumed it^ sessions, in August, 
 1 80 1, and they continued without further interruption. 
 
 Constitutional Reforms Proposed. 
 There was evidently some dissatisfaction with the 
 
The Second Constitution, 1821. 615 
 
 Constitution, and considerable agitation and discussion 
 of proposed changes. This dissatisfaction does not seem 
 to have made itself felt in the legislature until the session 
 of 181 1. That session gave considerable attention to 
 the subject. A bill was passed by the assembly, recom- 
 mending a convention to consider the subjects of the 
 property qualifications of voters, the Council of Appoint- 
 ment, the election of sheriffs, and the appointment of 
 clerks by the court of common pleas. While the bill was 
 under consideration propositions were made to give the 
 convention power to consider the subjects of eligibility 
 to the legislature, elections of justices of the peace, re- 
 quiring members of the Council of Appointment to take 
 an oath that they would not remove an officer except for 
 cause, prohibiting the appointment of any member of 
 the legislature to any other civil office during his term, 
 providing for the creation of senate districts equal in 
 number to the senators to be elected, and for electing 
 one senator from each district ; but the assembly declined 
 to include any of these in the subjects to be committed 
 to the convention. This bill apparently received some 
 consideration from the senate, but was not passed. 
 
 It appears from the senate journal that on the 2d of 
 March, 181 1, a convention of delegates from the several 
 towns of Ontario county was held at Canandaigua, on 
 the subject of the qualifications of voters, and that 
 the convention sent a petition to the legislature, which 
 was presented by John C. Spencer and others, praying 
 for a convention to consider the propriety of amending 
 the Constitution by removing the property qualification 
 of voters. A similar petition was presented by some of 
 the inhabitants of Rensselaer county. These petitions 
 and the action of the assembly show that there was a 
 growing movement in favor of general suffrage. 
 
 The subject of amending the Constitution was not 
 
6i6 Constitutional History of New York. 
 
 taken up by the legislature again until 1818. In March 
 of that year a joint committee of the senate and assem- 
 bly was appointed to "examine and report what altera- 
 tions, if any, it is expedient should be made in the Con- 
 stitution of this state." A few days later the assembly 
 members of the committee reported that the committee 
 was equally divided on the question "as to the expediency 
 of calling a convention at all." At this session two bills 
 were introduced, but not passed; one providing for a 
 convention to consider the subject of elective franchise, 
 and the other to consider the subject of appointment of 
 officers. 
 
 The legislature, in January, 1819, appointed another 
 joint committee to consider the question of revising the 
 Constitution, and to report subjects for the consideration 
 of a convention. 
 
 On the 8th of February, 1819, Erastus Root offered 
 a resolution instructing the joint committee "to preparje 
 and bring in a bill to provide for the calling of a con- 
 vention with full power to revise, alter, and modify the 
 whole or any part of the Constitution of this state." 
 Mr. Root's resolution was considered in committee of 
 the whole February 17, and after considerable discussion 
 was rejected by a vote of 51 to 56. 
 
 The subject of a convention was not considered by the 
 assembly further at that session. The senate took no 
 action, except to appoint members of the joint commit- 
 tee. This committee made no report. 
 
 Convention Proposed. 
 
 Governor DeWitt Clinton gave the subject of revis- 
 ing the Constitution considerable attention in his annual 
 speech to the legislature at the opening of its session, 
 January 4, 1820. His remarks concerning the Council 
 of Appointment and the partisan struggles incident to 
 
The Second Constitution, 182 1, 617 
 
 this piece of constitutional machinery are quite signifi- 
 cant, in view of the activity manifested by him twenty 
 years earlier in procuring a construction of the Consti- 
 tution, which made possible the condition nqw so forcibly 
 deprecated by him. 
 
 Concerning constitutional revision, the Governor said : 
 "The Constitution of this state was formed nearly forty- 
 three years ago. And considering the circumstances 
 under which it was established, in the midst of war and 
 commotion, and without the benefits of much experience 
 in representative government, it is not a little surprising 
 that it is so free from imperfection. Attempts have 
 been made at various times to call conventions to intro- 
 duce alterations, which have only succeeded in a single 
 instance, probably from an apprehension that an inno- 
 vating spirit might predominate, and destroy, instead of 
 consolidating, this temple of freedom and safety. Par- 
 ties are the natural offspring of republican government. 
 Wherever freedom exists, it will be manifested in dif- 
 ferences of opinion with respect to the best mode of 
 promoting the public welfare. And when these con- 
 tentions spread over society, they form, parties; and 
 mingling sometimes with private views and local inter- 
 ests, degenerate into faction, which seeks its gratification 
 in violation of morality, and at the expense of the gen- 
 eral good. And such is the proneness of human nature 
 to cherish the spirit of contention, that we often see the 
 continuance of parties after the cessation of the produ- 
 cing causes. While this state has made rapid and signal 
 advances in prosperity, it has been more obnoxious to 
 the excitement of party than any member of the Federal 
 Union. Even during the gloomy periods of the Revo- 
 lution, this spirit was exhibited in a variety of shapes, 
 and since that time it has scarcely ever ceased to agitate 
 society. Aft^r giving full weight to the operation of 
 
6i8 Constitutional History of New York. 
 
 other assignable causes, we are forced to conclude that 
 there is a radical defect in the Constitution of our gov- 
 ernment ; that it either wants some essential check against 
 the progress of party, or that it contains in its arrange- 
 ments the elements of discord and excitement. The as- 
 sembly, which is the most numerous branch of the legis- 
 lature, and which is annually chosen, elects every year, 
 from the senate, four persons, who, together with the 
 governor, constitute a Council of Appointment. The 
 offices in the gift of this council are remunerated by 
 salaries or fees to the amount of a million of dollars an- 
 nually. Combinations will be formed to obtain the con- 
 trol of this enormous patronage. And they will attempt 
 to influence, in the first place, the elections of the people, 
 by dictating under the forms and discipline of party; 
 secondly, the selection of the appointing power; and 
 thirdly, the operations of that institution. And when no 
 leading measures of the government have been impeached, 
 and no important differences of opinion pretended, en- 
 deavors are not unusual to cherish the spirit of discord 
 by conjuring up the shades of departed controversy, by 
 appealing to the vindictive feelings of disappointment, 
 or exciting the cravings of ambition and cupidity. With 
 this principle of irritation in our Constitution, the hydra 
 of faction will be in constant operation, endeavoring to 
 make its way to power, sometimes by open denunciation, 
 at others by secret intrigue, and always by artful ap- 
 proaches. The responsibility of public officers is essential 
 to the due perfonnance of their trust, and is demanded by 
 the properties , of delegated power, and the best interests 
 of the community. The council, as constituted, is almost 
 destitute of this essential requisite. The political tran- 
 quillity of the state demands a different arrangement of 
 the appointing power. And I have no hesitation in 
 recommending a convention for this and such other pur- 
 
The Second Constitution, 1821. 619 
 
 poses as may be imperatively required by the public wel- 
 fare. And I do this under a full persuasion that the 
 powers of the convention cannot transcend the objects 
 committed to their cognizance by the concurrent act of 
 the legislature and people, — that the landmarks of 
 security to liberty, property, religion, and life, will be 
 inviolably preserved and more firmly established; and 
 that the measure which will be adopted will have a benign 
 influence in preserving the harmony of the community, 
 and elevating the reputation of the state." 
 
 The senate proposed a joint committee to consider that 
 part of the Governor's speech relative to a constitutional 
 convention. The assembly did not concur, but referred 
 the subject to a select committee. On the i8th of Jan- 
 uary the assembly committee reported : 
 
 "That upon deliberate examination of this subject, they 
 are unanimously of opinion, that a radical defect must 
 somewhere exist in the Constitution of our state. 
 
 "Your committee, on this occasion, cannot forbear to 
 remark that, whilst they witness in our sister states gen- 
 erally a disposition to embrace the opportunity presented 
 in the present favorable state of our affairs as a nation, 
 of introducing such wise and salutary measures of im- 
 provement as the times seem peculiarly favorable for 
 carrying into effect, in this state, unfortunately, though 
 a like disposition is ardently appreciated by a great part 
 of the community, our energies are almost rendered 
 nugatory by our division into distinct and contentious 
 political parties, on subjects the most trivial and unim- 
 portant. 
 
 "Your committee are decidedly of opinion that this 
 evil is attributable, in a great measure, to the defects in 
 our state Constitution, the most prominent of which is 
 that part that relates to and directs the manner of ap- 
 pointment to office. Your committee deem it unnecessary 
 
620 Constitutional History of New York. 
 
 here to attempt a particular statement of the evils result- 
 ing from this part of our Constitution. The number of 
 which the Council of Appointment consists renders it at 
 once impossible for that body to possess the requisite 
 information on the various points upon which it becomes 
 their duty to decide ; hence, their continual liability to be 
 imposed upon and deceived by misrepresentations which 
 it is out of their power to detect. This evil would be 
 more tolerable if limited in its operations to the county 
 or sections of the state in which an improper appointment 
 might be made. Unfortunately, it is not the case; your 
 committee might here enumerate various instances 
 (which they forbear to do) in which the appointment of 
 a county officer has been made the general electioneering 
 topic, and has gone the round of almost every public 
 journal in your state. Other points, though of seemingly 
 less importance, do, in the opinion of your committee, 
 strongly demand the interposition of a convention of the 
 people of this state, amongst which are the following, to 
 v^rit: That part that relates to the Council of Revision, 
 and that which determines the qualifications of voters at 
 elections. In the opinion of your committee, the right of 
 judging of the constitutionality and expediency of bills 
 which have passed the senate and assembly is better 
 disposed of by most of our sister states. Experience has 
 clearly demonstrated that this power may be safely vested 
 in the hands of your chief magistrate; and though your 
 committee have not before them an instance in which 
 any very serious evil has resulted from the manner in 
 which this power is at present disposed of, they are aware 
 that a case may, and very probably will, occur, should 
 that power be continued in the hands of your present 
 Council of Revision, in which differences of opinion be- 
 tween that and the other branches of our government 
 may produce incalculable injury to our state, which the 
 
The Second Constitution, 182 1. 621 
 
 voice of the people would be unable to remedy. Your 
 committee are therefore of opinion that the body in which 
 this power is vested ought, at stated periods, to be answer- 
 able to the people for a faithful and judicious exercise 
 of it. 
 
 "On that part of our Constitution which relates to the 
 qualification of voters at elections, your committee have 
 to remark that, although its provisions, when applied to 
 the state of New York, may be salutary and necessary, 
 it excludes from a participation in- the choice of the prin- 
 cipal officers of our government, that part of our popula- 
 tion on which, in case of war, you are dependent for pro- 
 tection, vis. J the most efficient part of the militia of our 
 state, most of whom are as deeply interested in the good 
 government thereof, both on account of their famihes 
 and attachment to the principles of our government, as 
 any other portion of our population. 
 
 "They therefore recommend the calling of a conven- 
 tion for the purposes above stated, and with such further 
 powers as this legislature may deem proper to recom- 
 mend ; and your committee are of opinion that the elect- 
 ors, in choosing delegates to such convention, will be 
 governed by a strict regard to such recommendation. 
 
 "They have prepared a bill accordingly, and directed 
 their chairman to ask leave to present the same." 
 
 The assembly, at this session, considered a bill for a 
 convention to amend the Constitution relative to the 
 Council of Revision, Council of Appointment, qualifica- 
 tion of voters for governor, senators, members of as- 
 sembly, and the division of the state into senatorial dis- 
 tricts, also to consider the propriety of inserting in the 
 Constitution a provision that no law respecting the com- 
 pensation of members of the legislature shall take effect 
 until after the expiration of the legislative year in which 
 such law may be passed, and to provide the manner of 
 making ftiture amendments. But the bill was not passed. 
 
622 Constitutional History of New York. 
 
 On the 17th of February, 1820, while the bill was under 
 consideration by the committee of the whole of the as- 
 sembly, a motion was made to amend the bill by provid- 
 ing for a submission to the people of three propositions : 
 "ist. In favor of a general convention. 2d. In favor of 
 a limited convention, to be limited by the legislature. 3d. 
 Against any convention." This proposition was adopted 
 in the committee of the whole by a vote of 61 to 51, but 
 when the report of the committee came before the as- 
 sembly, leave to sit again was refused. This ended the 
 matter for that session. 
 
 We note in these suggestions, and also in some of those 
 made in previous years, germs of propositions that later 
 became a part of the Constitution. It had already be- 
 come apparent that members of the legislature ought not 
 to fix their own compensation, and that they ought not to 
 receive appointments to other civil offices. We shall have 
 occasion to note the action taken by the Convention of 
 1821 on these subjects, and the reasons for the restraints 
 imposed by the new Constitution. 
 
 Governor Clinton, in his speech at the opening of the 
 next session of the legislature, November 7, 1820, again 
 referring to the Council of Appointment, and to the 
 necessity of a constitutional convention to consider this 
 and other subjects, said: 
 
 "If the ingenuity of man had been exercised to organ- 
 ize the appointing power in such way as to produce con- 
 tinual intrigue and commotion in the state, none could 
 have been devised with more effect than the present ar- 
 rangement. We have seen its pernicious influence in the 
 constant commotions which agitate us ; and we can never 
 expect that the community will be tranquil, or that the 
 state will maintain its due weight in the confederacy, 
 until a radical remedy is applied. Under this impression. 
 
The Second Constitution, 1821. 623 
 
 I have heretofore proposed the calling of a convention. 
 The Constitution contains no provisions for its amend- 
 ment. In 1801, the legislature submitted two specific 
 points to a convention of delegates, chosen by the people, 
 which met and agreed to certain amendments. Attempts 
 have been made at various times to follow up this prece- 
 dent, which have been unsuccessful, not only on account 
 of a collision of opinion about the general policy of the 
 measure, but also respecting the objects to be proposed 
 to the convention. These difficulties may be properly 
 surmounted, either by submitting the subject of amend- 
 ments generally to a convention, and thereby avoiding 
 controversy about the purposes for which it is called, or 
 by submitting the question to the people in the first in- 
 stance, to determine whether one ought to be convened ; 
 and in either case, to provide for the ratification by the 
 people in their primary assemblies, of the proceedings of 
 the convention. This double check will be admirably 
 calculated to carry into effect the sovereign authority of 
 the people; to guard against dangerous interpolations in 
 our fundamental charter; to check a spirit of pernicious 
 innovation, and empirical prescription, and to allay the 
 apprehensions of some of our best and wisest fellow-citi- 
 zens, who, already satisfied with the signal prosperity 
 and high destinies of the state, are unwilling, for the sake 
 of some improvements, to encounter the risk of chang- 
 ing materially the features of the Constitution, which, in 
 its general conformation, is admirably calculated to pro- 
 mote the happiness, to elevate the prosperity, and to 
 protect the freedom of the community." 
 
 Convention Bill; Chancellor Kent's Veto. 
 
 On the loth of November Michael Ulshoeffer intro- 
 duced a bill for a convention, which was passed by the 
 legislature on the 20th. This bill was similar to the con- 
 
624 Constitutional History of New York. 
 
 vention act of 1801. It recommended a convention, and 
 provided for the election of delegates, equal in number 
 to the members of assembly, from the several cities 
 and counties. The delegates so chosen were to com- 
 pose a convention for the "purpose of considering the 
 Constitution of this state and making such alteration 
 in the same as they may deem proper, and to provide the 
 manner of making future amendments thereto." The 
 bill did not provide for ascertaining the sense of the 
 people on the question of holding a convention, but the 
 amended Constitution was to be submitted to the people 
 for their approval. This bill was vetoed on the same day 
 by the Council of Revision, on objections reported by 
 Chancellor Kent. The judicial members of the council 
 were equally divided on this veto. Chancellor Kent and 
 Chief Justice Ambrose Spencer voting for it. Associate 
 Justices Yates and Woodworth voting against it. Gov- 
 ernor DeWitt Clinton gave the casting vote in favor of 
 the veto. 
 
 The bill was vetoed on two grounds : first, that it con- 
 tained no provision for ascertaining the sense of the 
 people on the question of holding a convention; and 
 second, that it provided for submitting the amended Con- 
 stitution to the people as a whole, and did not give them 
 any opportunity to discriminate as to their approval or 
 disapproval of its different parts. 
 
 On the first ground of objection. Chancellor Kent says : 
 "There can be no doubt of the great and fundamental 
 truth, that all free governments are founded on the au- 
 thority of the people, and that they have at all times an 
 indefeasible right to alter and reform the same as to their 
 wisdom shall seem meet. The Constitution is the will 
 of the people, expressed in their original charter, and in- 
 tended for the permanent protection and happiness of 
 them and their posterity, and it is perfectly consonant to 
 
The Second Constitution, 1821. 625 
 
 the republican theory, and to the declared sense and 
 practice of this country, that it cannot be altered or 
 changed in any degree without the expression of the same 
 original will. It is worthy, therefore, of great considera- 
 tion, and may well be doubted whether it belongs to the 
 ordinary legislature — chosen only to make laws in pur- 
 suance of the provisions of the existing Constitution — to 
 call a convention, in the first instance, to revise, alter, 
 and perhaps remodel the whole fabric of the government, 
 and before they have received a legitimate and full ex- 
 pression of the will of the people that such changes should 
 be made. The difficulty of acceding to such a measure 
 of reform, without the previous approbation of the con- 
 stituents of the government, presses with peculiar force 
 and with painful anxiety upon the Council of Revision, 
 which was instituted for the express purpose of guarding 
 the Constitution against the passage of laws 'inconsistent 
 with its spirit.' 
 
 "The Constitution of this state has been in operation 
 upwards of forty years, and we have but one precedent 
 on this subject, and that is the case of the Convention 
 of 1 80 1. But it is to be observed that the Convention of 
 that year was called for two specific objects only, and 
 with no other power or authority whatsoever. One of 
 those objects was merely to determine the true construc- 
 tion of one of its articles, and was not intended to alter 
 or amend it; and the other was to reduce and limit the 
 number of the senators and members of assembly. The 
 last was the single alteration proposed, and perhaps even 
 with respect to that point it would have been more advis- 
 able that the previous sense of the people should have 
 been taken. But there is no analogy between this single 
 and cautious case, and the measure recommended by the 
 present bill, which is not confined to any specific object 
 of alteration or revisal, but submits the whole constitu- 
 VoL. I. Const. Hist.— 40. 
 
626 Constitutional History of New York. 
 
 tional charter, with all its powers and provisions, how- 
 ever venerable they may have become by time, and valu- 
 able by experience, to unlimited revisal. The council 
 have no evidence before them, nor does any legitimate 
 and authentic evidence exist, that the people of this state 
 think it either wise or expedient that the entire Constitu- 
 tion should be revised and probed, and perhaps disturbed 
 to its foundation. 
 
 "The council, therefore, think it the most wise and 
 safe course, and most accordant with the performance 
 of the great trust committed to the representative powers 
 under the Constitution, that the question of a general 
 revision of it should be submitted to the people, in the 
 first instance, to determine whether a convention ought 
 to be convened." 
 
 The next day, the 21st, the objections of the Council 
 of Revision were referred to a special committee of the 
 assembly, composed of Michael Ulshoeffer, Samuel M. 
 Hopkins, Howland Fish, William Thompson, Erastus 
 Root. 
 
 January 9, 1821, this committee made a long report, 
 defending the bill, taking issue with the Council of Re- 
 vision on its objections, giving the history of the agitation 
 for a convention, and making some observations on cur- 
 rent political affairs, indulging in some feeling concerning 
 the fate of the bill. 
 
 In view of the personnel of the Council of Revision, 
 the observations of the committee concerning the action 
 of the council show a quite remarkable freedom of criti- 
 cism of high public officials, containing also a tinge of 
 jealousy almost petulant, especially when coming from 
 one branch of the government, and directed toward an- 
 other of equal constitutional dignity. It will be recalled 
 that Governor Clinton and Chief Justice Spencer, now 
 members of the Council of Revision, were two members 
 
The Second Constitution, 1821. 627 
 
 of the Coimcil of Appointment twenty years earlier, when 
 the breach occurred between the Governor and the coun- 
 cil resulting in the Convention of 180 1, and that they were 
 then opposed to the Governor's claim of the exclusive 
 right of nomination of officers. Fortune had brought 
 them to a still higher position in public affairs, for one 
 had become the head of the executive branch of the gov- 
 ernment, and the other had become the head of the 
 supreme court; while James Kent, who, in 1801, was an 
 associate justice of the supreme court, had now become 
 chancellor, and the recognized head of the judicial system 
 of the state. It is, therefore, somewhat curious to note 
 the observation of the committee that "the opinion of the 
 council, independent of its constitutional effect, has 
 heretofore been much respected. But on this occasion 
 it has perhaps been less estimated, owing to the division 
 of opinion existing among the members of the council, 
 as well as the serious doubts entertained whether the 
 objections of the majority are at all well founded, and 
 a question, moreover, whether the council possess the 
 constitutional power arbitrarily to object to the passage 
 of bills, upon mere opinion, vaguely expressed, respecting 
 their propriety or expediency." Continuing, the commit- 
 tee say that "it may well be doubted whether the Council 
 of Revision was ever intended as a legislative branch of 
 the government, or in effect to exercise the powers of 
 legislation. Such a construction cannot fairly be given 
 to the Constitution." 
 
 The section in the first Constitution on the Council of 
 Revision clearly gave that council the right to veto bills. 
 Under it a bill could not become a law until it had been 
 presented to the council, and if it should appear "im- 
 proper" to the council that the bill should become a law, 
 they were required to return the same, together with their 
 objections thereto in writing, to the house in which the 
 
$28 Constitutional History of New York. 
 
 bill originated; and the bill could not, after such objec- 
 tions, become a law unless passed by a two-thirds vote. 
 Yet this committee say that "it cannot be believed that 
 this article ought to receive so liberal a construction as 
 to give the council legislative powers, or to authorize 
 them to object to any bill upon questions not of plain 
 constitutional doubt, or of substantial and paramount con- 
 sideration of public good." The committee further sug- 
 gest that the logical result of the authority claimed and 
 exercised by the Council of Revision would be to make 
 it in effect a third branch of the legislature; and, by 
 interposing objections, could compel the legislature to 
 pass all bills by two-thirds vote ; and the committee con- 
 cluded its observations on this subject by suggesting that 
 when a convention is assembled it remains to be solemnly 
 determined whether such an exercise of power is in con- 
 formity to the letter or spirit of our charter; and whether 
 a council (all of whom, except the Executive, are inde- 
 pendent of the people) should be allowed any longer to 
 enforce so dangerous an authority. The committee then 
 argued the question at considerable length, contending 
 that the bill was proper and constitutional, and ought to 
 be passed, notwithstanding the objections of the Council 
 of Revision. On the 15th of January, 1821, the assembly 
 reconsidered the convention bill, but it did not receive 
 the required two-thirds vote. 
 
 Convention Act Passed. 
 
 On the 13th of March, 1821, an act was passed 
 (chapter 90) recommending a convention of the people 
 of this state, and the question of holding a convention 
 was to be submitted to the people on the last Tuesday of 
 April. It was further provided that if the majority of the 
 votes cast were in favor of a convention "it shall and 
 may be lawful, and it is hereby recommended to the 
 
The Second Constitution, 1821. 629 
 
 citizens of this state, on the 3d Tuesday of June next" 
 to elect the same number of delegates as the number of 
 members of assembly. It was further provided that the 
 delegates so chosen meet in convention in Albany on the 
 last Tuesday in August, 1821. The statute provided for 
 an election of delegates to compose a convention "for 
 the purpose of considering the Constitution of this state, 
 and making such alterations in the same as they may 
 deem proper ; and ^ to provide the manner of making 
 future amendments thereto." The statute provided for 
 the submission of the amended Constitution to the de- 
 cision of the citizens of this state, such amendments to 
 be submitted either as a whole or in parts, and that the 
 said convention shall prescribe the time and manner of 
 holding an election for such purposes. 
 
 The Convention. 
 
 At last, after forty-five years, the representatives of 
 the people of New York once more assembled, with the 
 direct authority to reconsider, revise, and reconstruct 
 their fundamental charter. Not since that eventful 9th 
 of July, 1776, had a convention with similar powers 
 assembled in this state. The few attempts to call consti- 
 tutional conventions show some dissatisfaction with the 
 Constitution, but the failure of these attempts also shows 
 how jealously the people guarded their institutions. The 
 generation that framed the first Constitution, and con- 
 structed the first state government, had done its work and 
 had laid down its responsibilities, leaving a priceless 
 legacy to its successors. But after forty-five years of 
 experience and growth and development it had become 
 apparent to the leaders in public affairs that the state 
 needed a Constitution more suited to modern conditions, 
 and with limitations which the authors of the first Con- 
 
630 Constitutional History of New York. 
 
 stitution did not deem necessary, or which had become 
 necessary, in the course of the state's development. 
 
 It is a fact worth noting that John Jay, the principal 
 author of the first Constitution, was still living when the 
 Convention of 1821 was held. He had retired from 
 active life, and had been in poor health many years. John 
 Adams, referring to this convention, wrote to him May 
 13, 182 1 : "I hope you will be a member of the conven- 
 tion in New York (for the revision of the Constitution). 
 It will want some such heart-of-oak pillar to support the 
 temple." But the condition of Mr. Jay's health prevented 
 his accepting this trust. It would have been a most 
 fitting culmination of a great career if John Jay could 
 have been a member of this Convention, and could have 
 assisted in re-shaping its constitutional policy on the 
 exalted model which, with such wise statesmanship, he 
 had constructed for an earlier generation; but, while he 
 could not attend in person, he was represented by his son, 
 Peter A. Jay, and by a nephew, Peter Jay Munro. 
 
 The following is the list of delegates by counties : 
 
 Albany. — Stephen Van Rensselaer, James Kent, Am- 
 brose Spencer, Abraham Van Vechten. 
 
 Allegany and Steuben. — Timothy Hurd, James M'Call. 
 
 Broome. — Charles Pumpelly. 
 
 Cattaraugus and Erie. — Augustus Porter, Samuel 
 Russell. 
 
 Cayuga. — David Brinkerhoff, Rowland Day, Augustus 
 F. Ferris. 
 
 Chenango. — Thomas Humphrey, Jarvis K. Pike, 
 Nathan Taylor. 
 
 Clinton and Franklin. — Nathan Carver. 
 
 Columbia. — William Van Ness, Elisha Williams, 
 Jacob R. Van Rensselaer, Francis Sylvester. 
 
 Cortland. — Samuel Nelson. 
 
 Delaware. — Erastus Root, Robert Clarke. 
 
 Dutchess. — James Tallmadge, Jr., Peter R. Livingston, 
 
The Second Constitution^ 1821. 631 
 
 Abraham H. Schenck, Elisha Barlow, Isaac Hunting. 
 
 Essex. — Reuben Sanford. 
 
 Genesee. — David Burroughs, John Z. Ross, Elizur 
 Webster. 
 
 Greene. — Jehiel Tuttle, Alpheus Webster. 
 
 Herkimer. — Richard Van Home, Sanders Lansing, 
 Sherman Wooster. 
 
 Jefferson. — Egbert Ten Eyck, Hiram Steele. 
 
 Kings. — ^John Lefferts. 
 
 Lewis. — Ela Collins. 
 
 Livingston. — ^James Rosebrugh. 
 
 Madison. — Barak Beckwith, John Knowles, Edward 
 Rogers. 
 
 Monroe. — ^John Bowman. 
 
 Montgomery. — Philip Rhinelander, Jr., Howard Fish, 
 Jacob Hees, William I. Dodge, Alexander Sheldon. 
 
 New York. — Nathan Sanford, Peter Sharpe, Peter, 
 Stagg, Peter H. Wendover, William Paulding, Jr., 
 Ogden Edwards, Jacobus Dyckman, Henry Wheaton, 
 James Fairlie, John L. Lawrence, Jacob Radcliff. 
 
 Oneida. — ^Jonas Piatt, Henry Huntington, Ezekiel 
 Bacon, Nathan Williams, Samuel S. Breese. 
 
 Onondaga. — Victory Birdseye, Parly E. Howe, Amari 
 Case, Asa Eastwood. 
 
 Ontario. — Philetus Swift, John Price, Micah Brooks, 
 Joshua Van Fleet, David Sutherland. 
 
 Orange. — John Duer, Benjamin Woodward, John Hal- 
 lock, Jr., Peter Milikin. 
 
 Otsego. — Martin Van Buren, Joseph Clyde, David 
 Tripp, Ransom Hunt, William Park. 
 
 Putnam. — Joel Frost. 
 
 Queens. — Rufus King, Elbert H. Jones, Nathaniel 
 Seaman. 
 
 Rensselaer. — ^James L. Hogeboom, John W. Woods, 
 David Buel, Jr., John Reeve, Jirah Baker. 
 
632 Constitutional History of New York. 
 
 Richmond. — Daniel D. Tompkins. 
 
 Rockland — Samuel G. Verbryck. 
 
 Saratoga. — Salmon Child, John Cramer, Samuel 
 Young, Jeremy Rockwell. 
 
 Schenectady. — John Sanders, Henry Yates, Jr. 
 
 Schoharie. — ^Jacob Sutherland, Olney Briggs, Asa 
 Starkweather. 
 
 Seneca. — Robert S. Rose, Jonas Seeley. 
 
 St. Lawrence. — ^Jason Fenton. 
 
 Suffolk. — Ebenezer Sage, Usher H. Moore, Joshua 
 Smith. 
 
 Tioga. — Matthew Carpenter. 
 
 Tompkins. — Richard Smith, Richard Townley. 
 
 Ulster and Sullivan. — Henry Jansen, James Hunter, 
 Jonathan Dubois, Daniel Clark. 
 
 Washington and Warren. — Nathaniel Pitcher, Melanc- 
 ton Wheeler, Alexander Livingston, William Townsend, 
 John Richards. 
 
 Westchester. — Peter A. Jay, Jonathan Ward, Peter 
 Jay Munro. 
 
 This Convention was composed of many of the most 
 distinguished men of the state. 
 
 Daniel D. Tompkins, then Vice President of the United 
 States, represented the county of Richmond, and was 
 chosen president of the Convention. He had made his 
 first appearjince in public life twenty years earlier, in the 
 Convention of 1801, and since that time he had been a 
 justice of the state supreme court, ten years governor, 
 covering the period of the War of 1812, and he closed 
 his public career in New York with this convention. 
 
 Chancellor Kent was also there, bringing to the Con- 
 vention the wisdom and experience accumulated through 
 a long service at the bar, in the legislature, in the supreme 
 court, court of chancery, and in the Council of Revision, 
 
The Second Constitution, 1821. 633 
 
 and bestowing on the work of the Convention the same 
 thoughtful care, and expressing his opinions with the 
 same elegant felicity which marked his judgments from 
 the bench, and which so conspicuously characterizes his 
 great commentaries on American law. It is a curious 
 illustration of the irony of events that a mere accident 
 should have placed in our first Constitution a provision 
 abridging judicial service at the age of sixty years. By 
 reason of this age limitation Chancellor Kent was on the 
 eve of retirement when this Convention was held ; but that 
 enforced retirement of a great jurist, in full possession 
 of his powers, gave to the world the greatest work yet 
 produced on American law. 
 
 Martin Van Buren was also a member of this Conven- 
 tion. He had already served seven years as state senator, 
 and had just been elected to the United States Senate. 
 Later he was governor, secretary of state, minister to 
 Great Britain, Vice President, and President of the 
 United States. The record of the Convention shows that 
 he took an active part in its deliberations. 
 
 Ambrose Spencer had already served in both branches 
 of the legislature, and had been a member of the Council 
 of Appointment, attorney general, associate justice of 
 the supreme court, chief justice, and after his retirement 
 from the bench resumed the practice of law at Albany, 
 where he was chosen mayor, and member of Congress. 
 
 William Van Ness was also a member of this Conven- 
 tion. He had already served in the assembly, and was at 
 this time a justice of the supreme court, which position 
 he held for fourteen years. He went out of office on the 
 last day of December, 1822, by virtue of a provision of 
 the new Constitution. 
 
 Samuel Nelson, then a young man of twenty-eight, 
 was also a member of this Convention. He had entered 
 public life the preceding year as presidential elector, and 
 
634 Constitutional History of New York. 
 
 he was destined to fill a large place in the judicial history 
 of the state and nation. He was appointed circuit judge 
 in 1823, associate justice of the supreme court in 1831, 
 chief justice in 1837, and in 1845 was appointed associate 
 justice of the Supreme Court of the United States, which 
 position he held until October, 1872. He was appointed 
 in 1871, by President Grant, a member of the Joint High 
 Commission to arbitrate the Alabama claims on the part 
 of the United States. He was also a member of the Con- 
 stitutional Convention of 1846. 
 
 Peter Jay Munro, chairman of the judiciary committee 
 of the Convention, was a nephew of John Jay, and one of 
 the leading lawyers of New York. 
 
 Erastus Root occupied a very high position in the Con- 
 vention, and exerted a deep influence in shaping the 
 results of its deliberations. He had already served many 
 years in the legislature and in Congress. At the time of 
 the Convention he was lieutenant governor, and for many 
 years was major general of the state militia. He was one 
 of the chief figures in the political history of the state 
 during the first half of the last century. 
 
 Nathan Sanford had already served the state in senate 
 and assembly several years ; for thirteen years had been 
 United States District Attorney, and had just closed a 
 term in the United States Senate. He was appointed 
 chancellor in 1823, on the retirement of Chancellor Kent. 
 
 Jonas Piatt, then a justice of the supreme court, was 
 also a member of the Convention. He had been a mem- 
 ber of the assembly, state senate, and of Congress. He 
 went out of office when the new Constitution took effect. 
 
 Henry Wheaton, then under forty, who had already 
 achieved prominence at the bar in Rhode Island and in 
 New York, who later became a legal scholar of wide at- 
 tainments, and a high authority on international law, 
 honored the state by his services in this Convention. He 
 
The Second Constitution, 1821. 635 
 
 had already served as division judge advocate of the 
 Army, and also for four years as justice of the marine 
 court of the city of New York. At the time of the Con- 
 vention he was reporter of the Supreme Court of the 
 United States, and in that capacity gave to the world a 
 series of reports which a noted German author termed 
 "the golden book of American law," covering one of the 
 most important periods in our national judicial history. 
 In 1825 the legislature appointed a commission composed 
 of Mr. Wheaton, John Duer, and Benjamin F. Butler, 
 to revise the statutes of the state. Their work appears as 
 the body of law known as the Revised Statutes of 1830, 
 which were adopted at different times during the preced- 
 ing three years. Mr. Wheaton served with this commis- 
 sion until April, 1827, when he was appointed charge 
 d'affaires of the United States at Denmark, being the first 
 American representative to that country. In 1835 he was 
 appointed minister to Prussia, and held the office tmtil 
 1846. Soon after his retirement, he was appointed 
 lecturer on international law in Harvard College, of 
 which institution he was a graduate. He was the author 
 of several important legal works, most important of 
 which is "The Elements of International Law." 
 
 Rufus King had already served his country as a dele- 
 gate from Massachusetts to the Continental Congress, 
 1 784-1 786, as United States senator from New York, 
 1789-1796, and minister to Great Britain, 1796-1803. 
 He was again elected United States senator in 1813, re- 
 elected in 1819, and held that office at the time of the 
 Convention. In 1825 he was again appointed minister 
 to Great Britain. Though sixty years of age, and prob- 
 ably one of the oldest members of the Convention, he 
 took an active interest in all its deliberations, speaking on 
 nearly all the important questions under consideration. 
 
 Peter A. Jay, a son of John Jay, represented West- 
 
636 Constitutional History of New York. 
 
 Chester county in the Convention. He had served, in 
 181 6, as member of assembly, and, at the time of the 
 Convention, was recorder of the city of New York. He 
 was evidently dissatisfied with the work of the Conven- 
 tion, for he voted against the Constitution, and his letters 
 to his father, written while the Convention was in session, 
 and soon afterwards, show that he felt that the new 
 Constitution had gone too far in the direction of general 
 suffrage. 
 
 John Duer was a prominent member of the Convention. 
 Soon after the new Constitution took effect he was ap- 
 pointed a member of a commission td revise the statutes. 
 The results of this commission's work appear in the Re- 
 vised Statutes of 1830, which have ever since been re- 
 garded as a model of general statute law. After the com- 
 pletion of this work he became an associate judge of the 
 superior court of the city of New York, and in 1857 was 
 made the chief justice of the court. 
 
 Ogden Edwards had already served many years as sur- 
 rogate of the county of New York, and also as a member 
 of the legislature. Under the new Constitution he was 
 appointed a circuit judge of the supreme court, and held 
 the ofHce till 1841, when his term was abridged by the 
 age limit in the Constitution. 
 
 Many other men who afterwards held responsible posi- 
 tions and achieved distinction in state and local history 
 were members of this Convention, and assisted in fram- 
 ing the second Constitution. 
 
 The Convention met on the 28th of August, 1821, and 
 closed its labors on the loth of November. It considered 
 the entire first Constitution, abrogating many of its pro- 
 visions, modifying others, and continuing a few without 
 change. Many new provisions were incorporated in the 
 second Constitution, and it became, in many respects, a 
 new charter. Committees were appointed to consider the 
 
The Second Constitution, 1821. 637 
 
 various parts of the Constitution, the new provisions 
 were thoroughly discussed, and often defeated at great 
 length. The Convention seemed to be pervaded with a 
 sincere desire to make a constitution which should ex- 
 press in outline the policy of the state concerning public 
 affairs and administration, so far as that policy needed to 
 be enlarged or limited by the fundamental law. 
 
 There were several storm-centers in the Convention, 
 and on many subjects wide and irreconcilable differences 
 of opinion. The debates also show occasional evidence 
 of considerable feeling. Several state departments, which 
 received the attention of the Convention, were directly 
 represented in that body, notably the Council of Revision 
 and the judiciary, and the attacks and defense in the dis- 
 cussion of these subjects sometimes provoked v^ry sharp 
 debate. On many of the most important propositions 
 the Convention was almost equally divided, and quite 
 frequently constitutional changes were made by a major- 
 ity of only two or three votes. 
 
 The Second Constitution. 
 
 The Constitution of 1821 might perhaps, with more 
 accuracy, be called the Constitution of 1822, because, 
 while it was framed in 1821, it was submitted to the 
 people in 1822, and all of its provisions took effect in 
 that year. This Constitution, with notes, appears in full 
 in the Introduction. By grouping its provisions accord- 
 ing to general subjects, and comparing them with the 
 provisions of the first Constitution, it will be noted that 
 we have here substantially a new Constitution. It may 
 be well first to ascertain what became of the first Consti- 
 tution. The preamble, including the resolutions of the 
 Continental Congress and, the Provincial Convention, and 
 also the Declaration of Independence, were, of course, 
 omitted. The conservatism of the Convention is shown 
 
638 Constitutional History of New York. 
 
 by the fact that out of forty-two sections in the first 
 Constitution, all except nine are continued, either with- 
 out change, or with modifications made necessary for the 
 purpose of enlarging their scope. These nine sections 
 are: i (Source of Authority), 3 (Council of Revision), 
 5 (First Census), 6 (Experiments as to the Method of 
 Voting), 8 (Electors' Oath of Allegiance), 22 (Appoint- 
 ment of State Treasurer), 23 (Council of Appointment), 
 30 (Election of Delegates in Congress), 42 (Naturaliza- 
 tion). 
 
 A brief analysis of the second Constitution shows the 
 results of development which the Convention thought 
 it necessary to express in the fundamental law. 
 
 The Legislature. 
 
 This was continued substantially as under the first Con- 
 stitution, — namely, to be composed of a senate of thirty- 
 two members elected for a term of four years, and 
 whose members must be freeholders; and an assembly 
 of one hundred and twenty-eight members, chosen 
 annually. It will be remembered that the first Con- 
 stitution, as amended in 1801, fixed the number of sen- 
 ators at thirty-two and the number of members of as- 
 sembly at one hundred, with a possible increase to one 
 hundred and fifty. The second Constitution did not pro- 
 vide for any increase. The first Constitution divided the 
 state into four senate districts, while the second Consti- 
 tution provided for eight districts. There was a strong 
 movement in the Convention in favor of individual dis- 
 tricts ; that is, as many districts as there were senators to 
 be elected, giving each district one senator. Other num- 
 bers were proposed, but the number eight was finally 
 agreed on as a compromise, and a provision made for 
 classifying the senators so that one fourth of the number 
 should be elected each year. This gave an opportunity 
 
The Second Constitution, 1821. 639 
 
 for sending new men to the senate, at the same time 
 keeping a majority of experienced members. Under the 
 first Constitution only freeholders could vote for sen- 
 ators; under the second Constitution senators were put 
 on the same plane as other officers in this respect, but the 
 freehold qualification of a senator was preserved. 
 
 A census was required to be taken once in ten years, 
 instead of in seven, as under the first Constitution, and 
 the senate districts were to be altered after each census. 
 
 A significant change was made in the basis of repre- 
 sentation. Under the first Constitution senators and 
 members erf assembly were apportioned on the basis of the 
 number of electors ; while under the second Constitution 
 the apportionment was based on the number of inhabi- 
 tants, excluding "aliens, paupers, and persons of color, not 
 taxed." 
 
 The second Constitution provided specifically that a 
 bill might originate in either house, and was subject to 
 amendment by the other. The peculiar provision of the 
 first Constitution requiring the houses to meet together in 
 conference in case of disagreement was omitted. 
 
 The compensation of the members of the legislature 
 was limited to $3 per day, with a provision that no in- 
 crease in compensation should take effect during the year 
 in which it was made. Members of the legislature were 
 also prohibited from receiving any civil appointment 
 from the governor and senate, or from the legislature 
 during the term for which they were elected. Members 
 of Congress and persons holding judicial or military 
 offices under the United States were made ineligible to 
 seats in the legislature. Each bill passed by the legislature 
 was to be presented to the governor for his consideration 
 before it could become a law. The veto power, pre- 
 viously vested in the Council of Revision, was transferred 
 to the governor, and the provisions of the first Constitu- 
 
640 Constitutional History of New York. 
 
 tion were continued requiring certain subsequent action 
 by the legislature on the veto of a bill, and also the effect 
 of a failure by the governor to return a bill v^rithin ten 
 days. The beginning of the political year was changed 
 from the ist of July to the ist of January, and the legis- 
 lature was required to meet on the ist Tuesday of Janu- 
 ary. 
 
 Suffrage. 
 
 The right of suffrage, under the first Constitution, was 
 based on property. Voters for governor, lieutenant gov- 
 ernor, and senators were required to be freeholders, own- 
 ing property worth 100 poimds ($250) over and above all 
 debts charged thereon. Voters for members of assembly 
 were required to own a freehold estate worth 20 pounds 
 ($50), or to be lessees of real property worth 40 shillings 
 ($5), and to have been rated and paid taxes in the state. 
 
 The governor, lieutenant governor, senators, and mem- 
 bers of assembly were the only state officers elective under 
 the first Constitution. This Constitution did not pre- 
 scribe the qualifications of voters at town meetings, but 
 by chapter 16, Laws of 1787, it was provided that "every 
 male person, being a citizen of this state, who shall be 
 above the age of twenty-one years, and shall have resided 
 in any town, precinct, or district, six months next preced- 
 ing such town, precinct, or district meieting, and paid 
 taxes within the same, or shall be possessed of a freehold, 
 or shall have rented a tenement of the yearly value of 
 forty shillings, for the term of one year, within the same, 
 shall have a right to vote at such meeting, and no other 
 person." 
 
 These property qualifications were a practical illustra- 
 tion of John Jay's maxim that "those who own the ct)un- 
 try ought to govern it." The fallacy of this maxim be- 
 came apparent to the next generation, who appreciated 
 
The Second Constitution, 1821. 641 
 
 the fact that ownership, in a broad sense, does not consist 
 merely in holding the technical title to property, and that 
 those who helped to produce, improve, and preserve prop- 
 erty are fairly entitled to a voice in determining the struc- 
 ture of the government, and in choosing the officers who 
 shall administer it. 
 
 But the Convention of 1821, while making some 
 advance, did not completely abrogate the restrictions of 
 the right of suffrage. It remained for the people a little 
 later, by special amendment, to sweep away all these 
 barriers against the full exercise of the right of suffrage 
 by every white male citizen. 
 
 A view of the right of suffrage expressed in the Con- 
 vention by Judge Piatt is worth noting at this point. He 
 said that the "elective privilege was neither a right nor a 
 franchise, but was, more properly speaking, an office. A 
 citizen had no more right to claim the privilege of voting 
 than of being elected. The office of voting must be con- 
 sidered in the light of a public trust, and the electors were 
 public functionaries, who had certain duties to perform 
 for the benefit of the whole community." Chief Justice 
 Spencer concurred in this view. 
 
 Suffrage has been defined as a "vote or a participation 
 m government, and specifically, the privilege of voting 
 under a representative government, upon the choice of 
 officers, and upon the adoption or rejection of funda- 
 mental laws." According to Judge Piatt's view, the right 
 of suffrage is not a natural right, but is a right granted 
 by the state to those who are deemed best qualified to use 
 it for the public weal. Those who organize a new society 
 may determine who shall participate in its administration, 
 and the manner in which this right shall be exercised. 
 The right of choosing public officers is a qualified right, 
 and often relative in its application. There is no such 
 thing as universal suffrage, because in no society do 
 
 Vol. I. Const. Hist. — 41. 
 
642 Constitutional History of New York. 
 
 all persons possess the right to vote, the classes depending 
 on the qualifications deemed essential to the exercise of 
 the privilege. Under our American system the power to 
 choose public officers may fairly be called a delegated 
 power, — delegated either to all the male citizens over 
 twenty-one years of age who have resided for a prescribed 
 period in the locality where the power is to be exercised, 
 or delegated to the legislature, or to the governor, or to 
 the judges, or to various municipal boards, like boards 
 of supervisors, common councils, boards of trustees, and 
 boards of education. In all these cases the object of the 
 exercise of the power is to select some person for a 
 public office. This office is a public trust, and the power 
 to fill it is a public trust, whether exercised by the gov- 
 ernor, the legislature, a municipal board, the voters in 
 a given locality, or by all the voters in the state. 
 
 In some cases the power to select the officer is vested 
 in one person ; in other cases in a number of persons, like 
 the members of municipal boards, or the legislature ; and 
 in still other cases by a larger number of persons not 
 themselves holding distinct public offices, but as qualified 
 voters, exercising this power of choice. Logically, the 
 character of the power is the same, whether exercised by 
 a number of persons called voters, acting in their original 
 capacity, or by other persons called officers, chosen to 
 perform certain functions, and acting in a representative 
 capacity. 
 
 We have already noted, in considering the creation of 
 the original state government, that the first Constitution 
 was actually adopted and put in operation by thirty-three 
 men, members of a convention composed of more than 
 three times that number, artd charged with the duty of 
 framing a new government for the colony. This small 
 body of men exercised the power of imposing on the 
 people of the state the limitations on the exercise of the 
 
The Second Constitution, 1821. 643 
 
 function of government contained in the Constitution, 
 determining what officers should be chosen by the people, 
 and prescribing the qualifications of the persons who 
 were deemed fit to exercise the privilege of selecting the 
 only state officers whose selection was committed to their 
 choice, — namely, the governor, lieutenant governor, sen- 
 ators, and members of assembly, — and they, or their ap- 
 pointees, chose the other state officers and many local 
 officers. The restriction on the exercise of the privilege 
 of voting, by limiting it either to owners or lessees of 
 real property, was a clear expression of the opinion en- 
 tertained by the framers of the first Constitution, that 
 the right to vote was not a natural right, and that it 
 should be exercised by those persons only who possessed 
 an interest in property sufficient to afford a presumption 
 that they would exercise the privilege for the welfare of 
 the state. 
 
 Several prominent members of the Convention of 1821 
 were in favor of continuing these limitations. While the 
 subject of the election of senators was under discussion, 
 on a motion by Chief Justice Spencer that the senators 
 should continue to be elected by freeholders, Chancellor 
 Kent made a speech in favor of the motion, arguing with 
 his usual force and clearness against the proposed exten- 
 sion which would place the election of senators on the 
 same basis as the election of members of assembly. His 
 remarks show that he still adhered to the principles taught 
 by the framers of our government, and they also show 
 the extreme conservatism of his opinions concerning the 
 elective privilege. 
 
 Chancdlor Kent said: "I cannot but think that the 
 considerate men who have studied the history of republics, 
 or are read in lessons of experience, must look with con- 
 cern upon our apparent disposition to vibrate from a 
 well-balanced government to the extremes of the demo- 
 
644 Constitutional History of New York. 
 
 cratic doctrines. . . . We are engaged in the bold and 
 hazardous experiment of remodeling the Constitution. 
 . . . The senate has hitherto been elected by the 
 farmers of the state, — by the free and independent lords 
 of the soil, worth at least $250 in freehold estate, over 
 and above all debts charged thereon. The governor has 
 been chosen by the same electors, and we have hitherto 
 elected citizens of elevated rank and character. Our as- 
 sembly has been chosen by freeholders, possessing a free- 
 hold of the value of $50, or by persons renting a tenement 
 of the yearly value of $5, and who have been rated and 
 actually paid taxes to the state. By the report before us, 
 we propose to annihilate, at one stroke, all those property 
 distinctions, and to bow before the idol of universal suf- 
 frage. That extreme democratic principle, when applied 
 to the legislative and executive departments of govern- 
 ment, has been regarded with terror by the wise men of 
 every age, because in every European republic, ancient 
 and modern, in which it has been tried, it has terminated 
 disastrously, and been productive of corruption, injustice, 
 violence, and tyranny. And dare we flatter ourselves 
 that we are a peculiar people, who can run the career of 
 history, exempted from the passions which have dis- 
 turbed and corrupted the rest of mankind? If we are 
 like other races of men, with similar follies and vices, 
 then I greatly fear that our posterity will have reason to 
 deplore, in sackcloth and ashes, the delusion of the 
 
 day 
 
 "I shall feel grateful if we may be permitted to retain 
 the stability and security of a senate, bottomed on the 
 freehold property of the state. Such a body, so consti- 
 tuted, may prove a sheet anchor amidst the future fac- 
 tions and storms of the Republic. The great leading 
 and governing interest of this state is, at present, the 
 agricultural; and what madness would it be to commit 
 
The Second Constitution, 1821. 645 
 
 that interest to the winds ! That great body of the people 
 are now the owners and actual cultivators of the soil. 
 With that wholesome population we always expect to 
 find modera,tion, frugality, order, honesty, and a due sense 
 of independence, liberty, and justice. It is impossible 
 that any people can lose their liberties by internal fraud 
 or violence so long as the country is parceled out among 
 freeholders of moderate possessions, and those freehold- 
 ers have a sure and efficient control in the affairs of the 
 government. Their habits, sympathies, and employments 
 necessarily inspire them with a correct spirit of freedom 
 and justice; they are the safest guardians of property 
 and the laws. We certainly cannot too highly appreciate 
 the value of the agricultural interest : it is the foundation 
 of national wealth and power. . . . 
 
 "I wish to preserve our senate as the representative of 
 the landed interest. I wish those who have an interest 
 in the soil to retain the exclusive possession of a branch 
 in the legislature, as a stronghold in which they may find 
 safety through all the vicissitudes which the state may be 
 destined, in the course of Providence, to experience. I 
 wish them to be always enabled to say that their freeholds 
 cannot be taxed without their consent. The men of no 
 property, together with the crowds of dependents con- 
 nected with great manufacturing and commercial estab- 
 lishments, and the motley and undefinable population of 
 crowded ports, may, perhaps, at some future day, under 
 skilful management, predominate in the assembly; and 
 yet we should be perfectly safe if no laws could pass with- 
 out the free consent of the owners of the soil. That se- 
 curity we at present enjoy; and it is that security that I 
 wish to retain. 
 
 "The apprehended danger from the experiment of uni- 
 versal suffrage applied to the whole legislative depart- 
 ment is no dream of the imagination. It is too mighty 
 
646 Constitutional History of New York. 
 
 an excitement for the moral constitution of men to en- 
 dure. The tendency of universal suffrage is to jeopardize 
 the rights of property and the principles of liberty. 
 There is a constant tendency in human society, and the 
 history of every age proves it, — there is a tendency in the 
 poor to covet and to share the plunder of the rich ; in the 
 debtor to relax or avoid the obligation of contracts; in 
 the majority to tyrannize over the minority, and trample 
 down their rights ; in the indolent and the profligate, to 
 cast the whole burthens of society upon the industrious 
 and virtuous; and there is a tendency in ambitious and 
 wicked men to inflame these combustible materials. It 
 requires a vigilant government, and a firm administration 
 of justice, to counteract that tendency. Thou shalt not 
 covet, thou shalt not steal, are divine injunctions, induced 
 by this miserable depravity of our nature. Who can un- 
 dertake to calculate with any precision, how many mil- 
 lions of people this great state will contain in the course 
 of this and the next century? and who can estimate the 
 future extent and magnitude of our commercial ports? 
 The disproportion between the men of property and the 
 men of no property will be in every society in a ratio to 
 its commerce, wealth, and population. We are no longer 
 to remain plain and simple republics of farmers, like the 
 New England colonists, or the Dutch settlements on the 
 Hudson. We are fast becoming a great nation, with 
 great commerce, manufactures, population, wealth, lux- 
 uries, and with the vices and miseries that they engender. 
 
 "The growth of the city of New York is enough to 
 startle and awaken those who are pursuing the ignis 
 fatuus of universal suffrage. In 1773 it had 21,000 
 souls; in 1801 it had 60,000 souls; in 1806 it had 76,000 
 souls; in 1820 it had 123,000 souls. [In 1900, 3,437,202. 
 C. Z. L.] 
 
 "It is rapidly swelling into, the unwieldy population, 
 
The Second Constitution, 1821. 647 
 
 and with the burdensome pauperism, of a European me- 
 tropoUs. New York is destined to become the future 
 London of America ; and in less than a century, that city, 
 with the operation of universal suffrage, and under skil- 
 ful direction, will govern this state. 
 
 "The notion that every man that works a day on the 
 road, or serves an idle hour in the militia, is entitled as 
 of right to an equal participation in the whole power of 
 the government, is most unreasonable, and has no founda- 
 tion in justice. . . . 
 
 "Society is an association for the protection of prop- 
 erty as well as of life, and the individual who contributes 
 only one cent to the common stock, ought not to have the 
 same power and influence in directing the property con- 
 cerns of the partnership as he who contributes his thou- 
 sands. He will not have the same inducements to care, 
 and diligence, and fidelity. His inducements and his 
 temptation would be to divide the whole capital upon the 
 principles of an agrarian law. . . . 
 
 "Liberty, rightly understood, is an inestimable blessing ; 
 but liberty without wisdom, and without justice, is no bet- 
 ter than wild and savage licentiousness. The danger 
 which we have hereafter to apprehend is not the want, but 
 the abuse, of liberty. We have to apprehend the oppres- 
 sion of the minorities, and a disposition to encroach on 
 private right, — to disturb chartered privileges, and to 
 weaken, degrade, and overawe the administration of jus- 
 tice ; we have to apprehend the establishment of unequal, 
 and consequently, unjust, systems of taxation, and all 
 the mischief of a crude and mutable legislation. A 
 stable senate, exempted from the influence of tmiversal 
 suffrage, will powerfully check these dangerous propensi- 
 ties ; and such a check becomes the more necessary, since 
 this Convention has already determined to withdraw the 
 
648 Constitutional History of New York. 
 
 watchful eye of the judicial department from the passage 
 of laws. . . . 
 
 "We are destined to become a great manufacturing as 
 well as commercial state. We have already numerous 
 and prosperous factories of one kind or another, and one 
 master capitalist with his one hundred apprentices and 
 journeymen and agents and dependents will bear down 
 at the polls an equal number of farmers of small estates in 
 his vicinity, who cannot safely unite for their common 
 defense. Large manufacturing and rnechanical estab- 
 lishments can act in an instant with the unity and efficacy 
 of disciplined troops. It is against such combinations, 
 among others, that I think we ought to give to the free- 
 holders, or those who have interest in land, one branch 
 of the legislature for their asylum and comfort. Uni- 
 versal suffrage once granted, is granted forever, and 
 never can be recalled. There is no retrograde step in the 
 rear of democracy. However mischievous the precedent 
 may be in its consequences, or however fatal in its effects, 
 universal suffrage can never be recalled or checked, but 
 by the strength of the bayonet. We stand, therefore, this 
 moment, on the brink of fate; on the very edge of the 
 precipice. If we let go our present hold on the senate, 
 we commit our proudest hopes and our most precious in- 
 terests to the waves. . . . 
 
 "It ought further to be observed, that the senate is a 
 court of justice in the last resort. It is the last depository 
 of public and private rights ; of civil and criminal justice. 
 This gives the subject an awful consideration, and won- 
 derfully increases the importance of securing that house 
 from the inroads of universal suffrage. Our country 
 freeholders are exclusively our jurors in the administra- 
 tion of justice, and there is equal reason that none but 
 those, who have an interest in the soil should have any 
 concern in the composition of that court. As long as the 
 
The Second Constitution, 1821. 649 
 
 senate is safe, justice is safe, property is safe, and our 
 liberties are safe. But when the wisdom, the integrity, 
 and the independence of that court is lost, we may be cer- 
 tain that the freedom and happiness of the state are fled 
 forever. 
 
 "I hope, sir, we shall not carry desolation through all 
 the departments of the fabric erected by our fathers. I 
 hope we shall not put forward to the world such a new 
 Constitution as will meet with the scorn of the wise, and 
 the tears of the patriot." 
 
 Erastus Root, replying to Chancellor Kent, urged that 
 the senate should not be "elected by different persons, so 
 as to possess genius and feelings hostile to each other;" 
 that the senate and assembly should not be composed of 
 heterogeneous materials and distinct elements. He said 
 it was admitted that "the senate, although elected by free- 
 holders, has not possessed a superiority, in any respect, 
 over the other branch of the legislature. The balance 
 of the different branches of the government has 
 been a theme of warm admiration. It has been lik- 
 ened to a beautiful pyramid, of which the king was the 
 apex, the people the base, and the aristocracy in the cen- 
 ter, — that is, between the head and the tail. I am not dis- 
 posed to carry my admiration so far as to place the peo- 
 ple's governor at the top, the people's legislature at the 
 bottom, and the aristocratic senate, between two fires, 
 in the middle. However pleasant the theory may be, it 
 is incompatible with the genius of our government. 
 These powerful checks may be necessary between different 
 families, possessing adverse interests, but can never be 
 salutary among brothers of the same family, whose in- 
 terests are similar." 
 
 P. R. Livingston was opposed to continuing the limita- 
 tion as to voters for senators. He said that the people 
 wanted the extension of suffrage, that "74,000 witnesses 
 
650 Constitutional History of New York. 
 
 testified last spring that they wanted it. Meetings and 
 resolutions, public prints, and conversation have united 
 to require it." He said the landed interest itself had de- 
 manded this extension. "It is said that wealth builds our 
 churches, establishes our schools, endows our colleges, and 
 erects our hospitals." But he said these institutions have 
 not been raised without the hand of labor. "It is the same 
 hand that has leveled the sturdy oak, the lofty pine, and 
 towering hemlock, and subdued your forests to a garden. 
 It is not the fact, in this country, that money controls la- 
 bor; but labor controls money." 
 
 Governor Tompkins said that "property, when com- 
 pared with our other essential rights, is insignificant and 
 trifling. 'Life, liberty, and the pursuit of happiness' — 
 not of property — are set forth in the Declaration of Inde- 
 pendence as cardinal objects. Property is not even 
 named. It is not to be disguised that we are about to 
 become a naval power. The late war (1812) bore tri- 
 umphant testimony to the fact that we are under no neces- 
 sity of maintaining a standing army. The militia is suffi- 
 cient to repel incursions of the savages, to suppress insur- 
 rection, or to repel an invading foe. Give them some- 
 thing, then, to fight for. How was the late war sus- 
 tained ? Who filled the ranks of your armies ? Not the 
 priesthood, not the men of wealth, not the speculators : the 
 former were preaching sedition, and the latter decrying 
 the credit of the government, to fatten on its spoil. And 
 yet the very men who were led on to battle, had no vote 
 to give for their commander in chief. . . . 
 
 "We have yielded to property as much as it deserves. 
 It remains, also, that we should look to the protection of 
 him who has personal security and personal liberty at 
 stake. It is the citizen soldier who demands the boon, 
 and he rightfully demands it. It is a privilege inestima- 
 ble to him, and 'only formidable to tyrants.' " 
 
The Second Constitution, 1821. 651 
 
 Mr. Buel called attention to the Constitutions of other 
 states, pointing out that in four only, including New 
 York, was the exclusive right of voting confined to land- 
 holders ; and that a large majority of statesmen and patri- 
 ots of the country "sanctioned and established as a max- 
 im the opinion that there is no danger in confiding the 
 most extensive right of suffrage to the intelligent popula- 
 tion of these United States." 
 
 Martin Van Buren was in favor of the extension of the 
 right of suffrage, and made a long speech against Chief 
 Justice Spencer's motion. He spoke of the "sombre and 
 frightful picture" which had been drawn by Chancellor 
 Kent, and the "alarming consequences," which it was sup- 
 posed would flow from the proposed extension. He 
 quoted from a modern writer the observation that "Con- 
 stitutions are the work of time, not the invention of in- 
 genuity ; that to frame a complete system of government, 
 depending on habits of reverence and experience, was an 
 attempt as absurd as to build a tree, or manufacture an 
 opinion." Mr. Van Buren reviewed the argument on 
 both sides in an elaborate historical and philosophical 
 exposition of the principles involved, and urged the rejec- 
 tion of the amendment to permit freeholders only to vote 
 for senators. Judge Van Ness favored the retention of 
 the freehold qualification of voters for senators, suggest- 
 ing that this class included, in fact, nine tenths of the peo- 
 ple, and that the provision requiring this qualification 
 would be an inducement for men to become freeholders 
 so that they could thereby become voters. 
 
 The debate continued three days, and at its close Chief 
 Justice Spencer's motion was defeated by a vote of 19 to 
 100. This settled conclusively, in the Convention, the 
 question of the extension of the right of suffrage. 
 
 Four days after this vote was taken, Peter Jay Munro, 
 a nephew of John Jay, offered a resolution that "the right 
 
652 Constitutional History of New York. 
 
 of suffrage for all elective officers be vested in all the resi- 
 dent male citizens of the state, of the age of twenty-one 
 years," who have acquired a legal settlement in any city 
 or town. This resolution was referred to a select com- 
 mittee, but apparently the Convention was not ready for 
 this broad extension of the right of suffrage. The com- 
 mittee to whom this resolution was referred reported a 
 more restricted rule, which in substance was approved by 
 the Convention, but the people, five years later, adopted 
 Mr. Munro's plan, requiring for white voters only citi- 
 zenship and a prescribed length of residence. 
 
 RESTRICTING THE COLORED VOTE. 
 
 The American nation is not likely soon to outgrow the 
 effect of African slavery on its institutions ; social condi- 
 tions, statutes, commercial relations, and constitutional 
 provisions are familiar incidents of conditions produced 
 by the coming of the black man to America. It is almost 
 literally true that he came with the white settlers, and he 
 has from the first been an interesting and sometimes an 
 extremely perplexing concomitant of our American civili- 
 zation. The problem of the negro in America is not yet 
 settled. His statu's in our social and political order is 
 still uncertain, notwithstanding all our efforts, by statutes 
 and constitutions, to define his position. We cannot read 
 the negro out of our history ; he is an inseparable part of 
 it, and it is impossible intelligently to consider our insti- 
 tutions and omit this element of influence in shaping our 
 political system. While the direct effect of slavery was 
 most seriously felt in the Southern states, New York was 
 not too far north to become the home of the slave through 
 the colonial period and for fifty years of our state history. 
 The subject is especially pertinent here, for the Conven- 
 tion of 1 82 1 introduced into the Constitution a rule of ex- 
 clusion or of discrimination in relation to suffrage, which 
 
The Second Constitution, 1821. 653 
 
 placed colored voters in a diflferent class from that of their 
 white neighbors. We shall have occasion hereafter to 
 show that this discrimination continued until abrogated 
 by the Fifteenth Amendment to the Federal Constitution, 
 which took effect in 1870, and that it remained a part of 
 our state Constitution until the ist of January, 1875, 
 when it was superseded by the amendments of 1874. 
 
 The history of slavery in New York does not belong in 
 this work, but a few incidents concerning it may properly 
 be given for the purpose of explaining conditions which 
 seem to have influenced the Convention in adopting a 
 rule which was intended to exclude the majority of col- 
 ored men from the right to vote. The Dutch settlers of 
 New Netherland were not originally slave holders. This 
 appears from a communication from the Assembly of 
 XIX. to the States General in October, 1629, eight years 
 after the incorporation of the Dutch West India Com- 
 pany, in which it was said that the Dutch could not suc- 
 cessfully compete with the Spanish and Portuguese in 
 colonizing the tropical parts of America, for the reason 
 that the Dutch had no slaves and were not "used to the 
 employment of them." But the West India Company evi- 
 dently intended to overcome this difficulty, for in the 
 "Freedoms and Exemptions" proposed the same year for 
 the purpose of encouraging the settlement of New Neth- 
 erland the Company agreed to supply "the colonists with 
 as many blacks as they conveniently can" and so long as 
 the Company might deem proper. This policy was re- 
 newed in the "Freedoms and Exemptions" of 1640. So 
 the "Board of Accounts," in a report to the Assembly of 
 XIX., in 1644, suggested that it would not be unwise to 
 allow the introduction into New Netherland of negroes 
 from Brazil, "which negroes would accomplish more work 
 for their masters, and at a less expense, than farm serv- 
 ants." The policy of importing negroes was also encour- 
 
654 Constitutional History of New York. 
 
 aged in a communication from the Assembly of XIX. to 
 the Director and council in New Netherland in 1646, and 
 again by resolutions of the States General in 1648. 
 
 Thus the Dutch, a nation of freemen who had achieved 
 their political freedom after almost unparalleled sacrifices, 
 adopted, for the sake of commercial success, a social pol- 
 icy evidently repugnant to them. To what extent the 
 early colonists availed themselves of the encouragement 
 to introduce negro slavery does not appear. Some of 
 them do not seem to have taken kindly to this policy, for 
 in the remonstrance from the colony which was sent to the 
 States General in 1649, complaint is made, among other 
 things, that while certain slaves had been manumitted, 
 their children were continued in bondage, "contrary to all 
 public law, that any one born of a free Christian mother 
 should, notwithstanding, be a slave and obliged so to 
 remain." The West India Company, replying to this 
 complaint, said that the "Company's negroes taken from 
 the Spaniards, being all slaves, were, on account of their 
 long services, manumitted on condition that their children 
 serve the Company whenever it pleased," and that only 
 three of such children were then in service, one of whom 
 was in the family of Governor Stuyvesant. This partial 
 emancipation had no appreciable effect on the slave pol- 
 icy, which was firmly fastened on the colony, and was 
 further encouraged from time to time by the home gov- 
 ernment. 
 
 That the new policy had taken root is manifest from a 
 petition presented by the magistrates of Gravesend to the 
 Directors of the Company in Amsterdam, in September, 
 1 65 1, in which the magistrates requested the Directors to 
 purchase for that settlement "negroes or blacks," for 
 which the magistrates would pay whatever price the Com- 
 pany might charge. Incidentally it may be noted that in 
 the summer of 1664, not long before the Dutch surren- 
 
The Second Constitution, 182 1. 655 
 
 dered the colony to the English, a ship containing some 
 three hundred negroes came into New York bay, that 
 about two hundred and fifty were sold in this colony, and 
 the remainder were taken to colonies farther south. 
 
 The English found slavery an established institution 
 in the colony, but it was not new to English colonial ex- 
 perience. Slavery was continued and encouraged in New 
 York, and the records of that period show large importa- 
 tions of slaves. There was, however, an evidently sincere 
 attempt to mitigate the condition of these unfortunate 
 creatures, for we find, in the royal instructions to Gov- 
 ernor Dongan in 1686, a direction to him to find out, with 
 the assistance of the council, "the best means to facilitate 
 and encourage the Conversion of negroes & Indians to the 
 Christian Religion." These instructions were often re- 
 peated to subsequent governors. "Man's inhumanity to 
 man" was forcibly illustrated by the refusal of the assem- 
 bly, in 1699, to pass a bill urged by Governor Bellomont 
 for the purpose of facilitating the conversion of slaves, 
 who reported that the bill "would not go downe with the 
 assembly; they having a notion that the Negroes being 
 converted to Christianity would emancipate them from 
 their slavery, and loose them from their service, for they 
 have no other servants in this country but negroes." The 
 same Governor, in a communication to the Lords of 
 Trade, April 17, 1699, advised the importation of negroes 
 from Guinea, to be used in the manufacture of naval 
 stores, saying that they could be imported at an expense 
 of about ten pounds ($25) New York money, and could 
 be maintained for nine pence a day. To what extent this 
 suggestion influenced the subsequent slave trade I do not 
 know, but, according to the colonial records, 2,395 negrg 
 slaves were imported during twenty-five years, from 1701 
 to 1726 inclusive. According to the census of 1703 there 
 were 1,301 slaves in the counties of New York, Kings, 
 
6s6 Constitutional History of New York. 
 
 Richmond, Orange, and Westchester. The general cen- 
 sus of 1723 showed 6,171 negroes and slaves in the col- 
 ony. The last colonial census, 1771, showed 19,883 
 blacks, and Governor Tryon, in 1774, estimated that there 
 were then 21,149 blacks. 
 
 New York was not considered a very good slave mar- 
 ket. Governor (Lord) Combury, in a report in 1708, 
 said that ships engaged in the slave trade seldom came to 
 New York, "but rather go to Virginia and Maryland, 
 where they find a much better market for their negroes 
 than they can do here." Several statutes passed during 
 the colonial period imposed duties on the importation of 
 negroes, and sought to regulate the treatment and conduct 
 of slaves, including rigorous fugitive slave laws. 
 
 In the chapter on the first Constitution I have quoted 
 the preamble and resolution proposed in the Convention 
 of 1776-77 by Gouverneur Morris, intended to provide 
 for the gradual abolition of slavery. The preamble re- 
 cited that the blessings of freedom ought to be dispensed 
 to all mankind, but that the immediate abolition of slavery 
 was deemed inexpedient. The legislature was therefore 
 urged to take measures as soon as practicable for the abo- 
 lition of slavery, "so that in future ages every human 
 being who breathes the air of this state shall enjoy the 
 privileges of a freeman." The preamble and the resolu- 
 tion were each separately adopted by a large majority. 
 The resolution did not embody an essential constitutional 
 principle, and was only a recommendation to the legisla- 
 ture. After further consideration the Convention de- 
 cided to omit the provision from the Constitution, but the 
 effect of it remained as a declaration of the policy which 
 ought to be adopted and pursued in the state in relation to 
 slavery. I have also, in that chapter, noted the fact that 
 John Jay supported the Morris resolution, hoping that 
 New York would be the pioneer state in the abolition of 
 
The Second Constitution, 1821. 657 
 
 slavery. The Constitution as finally adopted was silent 
 on this subject, and it is noteworthy, in view of the action 
 of the Convention of 182 1, that the first Convention made 
 no discrimination among voters on account of color. 
 Negroes who possessed the other qualifications were per- 
 mitted to vote on the same terms as whites; indeed, the 
 classification of races was not even suggested in the first 
 Constitution. The statesmen who framed the first Con- 
 stitution, and who, by adopting the Morris resolution, 
 declared their attitude toward slavery, continued in con- 
 trol of public affairs many years. 
 
 The policy of the Morris resolution was practically 
 adopted by the legislature in 1785, by an act which pro- 
 hibited the sale in this state of any negro or other person 
 imported or brought into the state from any'other part of 
 the United States, or from any other place or country, 
 and such a person so sold contrary to the statute was 
 thereupon declared to be free. The same statute pro- 
 vided for the manumission of slaves, either by certificate 
 or by will. According to an act passed in 1798 it seems 
 that the Quakers had manumitted their slaves, but, in 
 some cases, not in strict conformity with the statute. 
 This act ratified all such manumissions. The abolition 
 movement was evidently growing, for in March of the 
 next year an act was passed declaring that every child 
 born in this state of a slave after the 4th of July, 1799, 
 should be free; yet not quite free, for the statute made 
 such a child the servant of its mother's proprietor until 
 twenty-eight years of age if a male, and twenty-five years 
 if a female, and subject to the provisions of law relating 
 to persons bound to service by overseers of the poor. The 
 act of 1 80 1 restricted the importation or exportation of 
 slaves except under specified conditions, amounting prac- 
 tically to a positive prohibition. The act of 1817 required 
 masters of servants who became such under the act of 
 
 Vol. I. Const. Hist.— 42. 
 
658 Constitutional History of New York, 
 
 1799 and subsequent statutes declaring the status of chil- 
 dren of slaves to provide for the education of such serv- 
 ants by teaching them, among other things, to read the 
 Holy Scriptures before they became eighteen years of 
 age, and in default, such a servant, on arriving at that 
 age, vs^as entitled to his freedom. The act of 1817 was 
 another step toward the ultimate abolition of slavery, for 
 it expressly declared that "every negro, mulatto, or mus- 
 tee within this state, born before the 4th day of July, 1799, 
 shall, from and after the 4th day of July, 1827, be free." 
 The 4th of July, 1827, thus became New York's emanci- 
 pation day. This principle was confirmed by that part 
 of the revised statutes, including this subject, which was 
 passed December 3, 1827, and signed by Governor De 
 Witt Clinton on the same day, which expressly declared 
 that "every person born within this state, whether white 
 or colored, is free; every person who shall hereafter be 
 born within this state, shall be free; and every person 
 brought into this state as a slave, except as authorized by 
 this title, shall be free." Thus ended slaveiy in New 
 York, after an existence of two centuries. 
 
 Opposition to slavery, which had been so clearly ex- 
 pressed by the Morris resolution in the Convention of 
 1777, continued to increase, and was evidenced not only 
 by the New York act of 181 7 providing for the abolition 
 of slavery, but also by the action of other states, and by 
 most earnest discussion in Congress. New York was not 
 oblivious to national anti-slavery agitation, but by execu- 
 tive and legislative utterances sustained the policy of re- 
 stricting slavery, which found expression in the Missouri 
 Compromise of 1820. The anti-slavery line between the 
 North and South was already being closely drawn, and 
 the proposed admission of Missouri into the Union as a 
 slave state culminated in the declaration of a far-reach- 
 ing policy in relation to the extension of slavery. 
 
The Second Constitution, 1821. 659 
 
 Governor De Witt Clinton referred to the subject in 
 his annual speech to the legislature in January, 1820, in 
 which, after considering some general aspects of national 
 affairs, he said he considered "the interdiction of the ex- 
 tension of slavery a paramount consideration. Morally 
 and politically speaking, slavery is an evil of the first 
 magnitude; and whatever may be the consequences, it is 
 our duty to prohibit its progress in all cases where such 
 prohibition is allowed by the Constitution. No evil can 
 result from its inhibition more pernicious than its tolera- 
 tion; and I earnestly recommend the expression of your 
 sense on this occasion as equally due to the character of 
 the state and the prosperity of the empire." The assem- 
 bly appointed a select committee to consider this part of 
 the Governor's speech. The committee reported the fol- 
 lowing preamble and resolution, which were adopted by 
 both houses : 
 
 "Whereas, the inhibiting the further extension of 
 slavery in these United States is a subject of deep con- 
 cern among the people of this state ; and whereas we con- 
 sider slavery an evil much to be deplored, and that every 
 constitutional barrier should be interposed to prevent its 
 further extension ; and that the Constitution of the United 
 States clearly gives Congress the right to require, in all 
 new states not comprised within the boundaries of 
 these United States, the prohibition of slavery as a condi- 
 tion of its admission into the Union :" New York sen- 
 ators and representatives were therefore asked to "oppose 
 the admission as a state into the Union any territory not 
 comprised as aforesaid, without making the prohibition 
 of slavery therein an indispensable condition of admis- 
 sion." 
 
 This was in January, 1820. On the 6th of March fol- 
 lowing. Congress passed an act providing for the admis- 
 sion of Missouri as a state, and which act expressly pro- 
 
66o Constitutional History of New York. 
 
 hibited slavery in that part of the Louisiana purchase 
 north of thirty-six degrees and thirty minutes north lati- 
 tude not included in Missouri. The first Constitution of 
 Missouri contained a clause requiring the legislature to 
 pass laws preventing free negroes and mulattoes from be- 
 coming residents of the state. Congress objected to this 
 provision and declined to admit the state, except upon the 
 condition that no law should ever be passed by the legis- 
 lature to enforce the free negro clause in the state Consti- 
 tution. The legislature was required to assent to this 
 condition by a public act, to be communicated to the 
 President, who was thereupon authorized to issue a proc- 
 lamation declaring Missouri admitted to the Union. An 
 act was accordingly passed which was deemed sufficient 
 by President Monroe, and a proclamation was issued by 
 him on the loth of August, 1821. This was only eigh- 
 teen days before the meeting of the New York Constitu- 
 tional Convention. Four important steps had been taken 
 in relation to slavery : three in New York, — namely, the 
 act of 1785, prohibiting the sale of persons as slaves in 
 New York, the act of 1799, giving freedom to the chil- 
 dren of slaves, and the act of 181 7, providing for the ulti- 
 mate abolition of slavery in this state in 1827, — and one 
 by Congress, prohibiting slavery in the northern part of 
 the Louisiana purchase. These were some of the positive 
 public acts which were fresh in the minds of statesmen 
 who composed the Convention, but the discussion went 
 far beyond the results actually accomplished, and the anti- 
 slavery sentiment was rapidly growing. New York had 
 taken the last practicable step for the abolition of slavery, 
 but slavery still existed, and only a few months after the 
 legislature passed the concurrent resolution already 
 quoted, a Federal census was taken which showed that 
 in New York there were then, 1820, 10,089 slaves, be- 
 sides 29,278 free blacks, and 701 indented servants, which 
 
Tke Second Constitution, 1821. 661 
 
 probably included the free children of slave parents, under 
 the act of 1799. It thus appeared that New York had a 
 colored population amounting to 39,367, not including 
 indented servants, some of whom were probably children 
 of slaves. 
 
 In the Convention of 1821 the committee on suffrage 
 proposed a provision limiting the elective franchise to 
 white male citizens. Peter A. Jay, a son of John Jay, 
 moved to strike out the word "white." This precipitated 
 a long debate in which the elements of the right of suf- 
 frage were considered from a philosophical and also from 
 a practical standpoint. It was admitted that the provi- 
 sion was new in our Constitution. Mr. Ross, explaining 
 the committee's report, said blacks were excluded "be- 
 cause they are seldom, if ever, required to share in the 
 common burthens or defense of the state." He said they 
 were "incapable of exercising that privilege with any sort 
 of discretion, prudence, or independence. They have no 
 just conceptions of civil liberty. They know not how to 
 appreciate it, and are consequently indifferent to its, pres- 
 ervation." He said the exclusion invaded no inherent 
 right, and had nothing to do with the question of slavery. 
 He said the question was one of expediency only. Mr. 
 Jay vigorously protested against the proposed exclusion, 
 urging that colored men already possessed this right, that 
 they were natives of the same country, and derived from 
 our institutions the same privileges, as white persons. He 
 said the whole number of colored persons was less than 
 one fortieth of the whole population, and that there was 
 no necessity for the exclusion as a public measure. He 
 said that in the city of New York not more than one tenth 
 of the inhabitants were colored and of this tenth only a 
 few were entitled to vote. General Root said the blacks 
 could not be called on for military service, and they have 
 "no anchorage in your country which the government is 
 
662 Constitutional History of New York. 
 
 willing to trust." He said it was impossible to remodel 
 the Constitution without changing the relative rights of 
 citizens. Mr. R. Clarke said that in the War of the Revo- 
 lution colored men helped to fight our battles on land and 
 sea, and in the War of 1812 they contributed to some of 
 the most splendid victories. 
 
 Mr. Young said when the first Constitution was framed 
 there were "few or no free blacks in the state. The pres- 
 ent state of things was not contemplated, and hence no 
 provision was made against it." Chancellor Kent sup- 
 ported Mr. Jay's motion. He said he did not come to 
 the Convention to disfranchise any person or to take away 
 any person's rights. He said it deserved consideration 
 whether the proposed exclusion would not be a violation 
 of the provision in the Federal Constitution that "the citi- 
 zens of each state shall be entitled to all the privileges and 
 immunities of citizens in the several states." Col. Young 
 quoted from the opinion of the chancellor, then chief jus- 
 tice, in Livingston v. Van Ingen, 9 Johns. 577, where it 
 was said that the clause meant "only that citizens of other 
 states shall have equal rights with our own citizens, and 
 not that they shall have different or greater rights." Mr. 
 Radcliff thought this provision applied only to civil, and 
 not to political, rights. Rufus King thought the provi- 
 sion extended to all rights. He said if the children of 
 the white men are citizens, so are the children of the black 
 men, "and they may, in time, raise up a progeny which 
 will be disastrous to the other races of this country." 
 
 Chief Justice Spencer made the following statement of 
 the principles which ought to guide a constitutional con- 
 vention in framing the fundamental law : "In proceed- 
 ing to amend the Constitution, this Convention has an un- 
 questionable right to protect and guard the rights of the 
 majority of the community, although it may seemingly 
 invade the rights of others. The community has a right 
 
The Second Constitution, 1821. 663 
 
 to secure its own happiness and prosperity, and we are 
 authorized to adopt all means that shall conduce to that 
 end. If we find existing in this community any particu- 
 lar class of people who cannot, with propriety and safety, 
 exercise and enjoy certain privileges, we have a right to 
 abridge them by placing them in the hands of the major- 
 ity." Referring to the blacks, the Chief Justice said that, 
 whatever our faults or the faults of our ancestors concern- 
 ing them, "we have the unquestionable right, if we think 
 the exercise of this privilege of voting by them will con- 
 travene the public good, — we have a right to say they 
 shall not enjoy it." 
 
 The Chief Justice said that the clause in the Federal 
 Constitution relating to privileges and immunities of citi- 
 zens referred only to personal rights. "A citizen had no 
 more right to claim to be an elector than to be elected." 
 General Tallmadge said that at a contested election in the 
 city of New York in the spring of 1821 only one hundred 
 and sixty-three colored persons voted. Mr. Livingston 
 said that when the first Constitution was framed a free 
 negro in this state was a phenomenon. Practically all 
 negroes were then slaves. Their condition had been 
 ameliorated by statute and otherwise, and provision had 
 been made for their emancipation, but he thought they 
 were not qualified to become electors, and ought not to be 
 clothed with that privilege. He said that out of about 
 fifty colored petitioners who had presented a petition for 
 a continuance of the elective franchise, more than twenty 
 could not even write their names. He said that at the 
 recent election in New York city more than five hundred 
 colored persons applied for admission as voters. 
 
 After a prolonged debate Mr. Jay's motion to strike 
 out the word "white" was carried by a vote of 63 to 59. 
 We find on the affirmative side the names of many leaders 
 of the Convention, including Jay, Kent, King, Munroe, 
 
664 Constitutional History of New York. 
 
 Nelson, Piatt, Van Buren, Van Ness, Wheaton, and 
 Yates. After considering other sections of the suffrage 
 article, the whole subject, on motion of Mr. Edwards, was 
 referred to a new committee of thirteen. This committee 
 brought in a report prescribing the general qualifications 
 of voters, with a proviso that "no male citizen, other than 
 white, shall be subject to taxation, or entitled to vote at 
 any election, unless, in addition to the qualifications of 
 age and residence last above mentioned, he shall be seized 
 and possessed, in his own right, of a freehold estate of the 
 value of $250, over and above all debts and incumbrances 
 charged thereon, and shall have been, within the year next 
 preceding the election, assessed, and shall have actually 
 paid, a tax to the state or county." 
 
 This presented a new view of the subject. Under the 
 original report of the standing committee a colored per- 
 son was denied the right of suffrage without regard to 
 property or other qualifications. The Convention, by a 
 narrow majority, had voted to strike the word "white" 
 from the first report, with the result that all persons, with- 
 out regard to color, would have been entitled to vote if 
 possessing the required qualifications. The new report 
 admitted colored citizens to the right of suffrage upon a 
 property test which was not applied to white voters, and 
 as an apparent compensation for the denial of suffrage, 
 colored persons were not to be subject to taxation unless 
 they were also qualified to vote. Mr. Briggs thought the 
 property qualification ought not to be imposed on blacks 
 any more than on whites. Chancellor Kent said he was 
 in favor of the proviso. He said it was true that the 
 blacks were, in some respects, a degraded portion of the 
 community, but he was unwilling to see them disfran- 
 chised and the door eternally barred against them. The 
 proviso would not cut them off from all hope, and might, 
 in some degree, alleviate the wrongs we had done them. 
 
The Second Constitution, 1821. 665 
 
 It would have a tendency to make them industrious and 
 frugal, with the prospect of participating in the right of 
 suffrage. Mr. Van Buren also supported the proviso. 
 The proviso was adopted by a vote of 72 to 31, but Chan- 
 cellor Kent evidently changed his mind, for he voted 
 against it, as did also Chief Justice Spencer, Mr. Jay, Mr. 
 Root, Mr. Munro, Judge Piatt, Mr. Wheaton, and sev- 
 eral others who had voted against the original report. 
 
 When the section was under consideration again. Judge 
 Piatt moved to expunge the proviso, and delivered a 
 speech which I think embodies the ablest presentation of 
 the subject during the debate on suffrage. He said the 
 "obligations of justice are eternal and indispensable." 
 The proviso embodied a principle to which he could not 
 give his consent. He admitted that most of the free ne- 
 groes in this state were unfit to be intrusted with the right 
 of suffrage. He said he would exclude the great mass 
 of them, "but not by this unjust and odious discrimination 
 of color." He said there was no necessity for this prin- 
 ciple of exclusion. "Let us," he said, "attain this object 
 of exclusion by fixing such an uniform standard of quali- 
 fication as would not only exclude the great body of free- 
 men of color, but also a large portion of ignorant and de- 
 praved white men, who are as unfit to exercise the power 
 of voting as the men of color." He said that by this pro- 
 viso "all freemen of African parentage are to be consti- 
 tutionally degraded, no matter how virtuous or intelli- 
 gent." The proviso added "mockery to injustice." 
 "During the last forty years we have brought up this for- 
 eign race from the house of bondage; we have led them 
 nearly through the wilderness, and shown them the prom- 
 ised land. Shall we now drive them back again into 
 Egypt?" Looking into the future. Judge Piatt said: 
 "If I do not deceive myself, those who shall live fifty 
 years hence will view this proviso in the same light as we 
 
666 Constitutional History of New York. 
 
 now view the law of our New England fathers, which 
 punished with death all who were guilty of being Quak- 
 ers ; or the law of our fathers in the Colonial Assembly of 
 New York, which offered bounties to encourage the slave 
 trade." In less than fifty years after this utterance 
 slavery had disappeared, and all discriminations in the 
 elective franchise, based on color, had been abolished. 
 Thirty-three delegates voted to strike out the proviso, but 
 the majority of the Convention adhered to the property 
 test for colored voters, and it was included in the Consti- 
 tution. 
 
 Under the second Constitution a qualified voter must 
 have been : — ■ 
 
 A resident of the state for one year. 
 
 A resident for six months in the town or county where 
 he might offer his vote. 
 
 He must have paid a tax within one year on his real or 
 personal property, unless he was exempt from taxation. 
 
 Or must have performed military duty within the year 
 in the state militia, unless he was entitled to a fireman's 
 exemption. 
 
 Or, having been a resident of the state three years, and 
 of the town or county one year, must have been assessed 
 for highway labor, and must have performed such labor, 
 or ha^ve commuted therefor. 
 
 These qualifications had substantially been prescribed 
 by the convention act of 1821 for voters on the question 
 of holding a convention and on the approval of the Con- 
 stitution to be proposed by the convention. The Conven- 
 tion, therefore, adopted, in substance, a suffrage policy 
 which had already been declared by the legislature. 
 
 A colored voter must have been a resident of the state 
 three years, and for one year seized or possessed of a free- 
 hold estate worth $250, over and above all debts charged 
 
The Second Constitution ^ 1821. 667 
 
 thereon, and on which estate he had paid a tax. Colored 
 persons were exempt from direct taxation on property 
 valued at less than $250. 
 
 A qualified voter was entitled to vote in the town or 
 ward where he resided, and not elsewhere, for all elective 
 officers. This abolished all distinctions under the first 
 Constitution between different classes of voters, and 
 placed all voters for all officers in one class. 
 
 The legislature was authorized to pass laws excluding 
 from the right of suffrage persons convicted of infamous 
 crimes. The legislature was also required to enact regis- 
 tration laws. 
 
 The Constitution also provided for election by ballot, 
 except for certain minor offices. Under the first Consti- 
 tution, the governor and lieutenant governor were to be 
 elected by ballot, and the senators and members of assem- 
 bly were to be elected viva voce. 
 
 The first Constitution authorized the legislature "as 
 soon as may be after the close of the present war between 
 the United States of America and Great Britain," to cause 
 all elections of senators and members of assembly to be 
 by ballot ; and if this method should prove unsatisfactory, 
 the legislature was authorized to restore voting viva voce. 
 By the first election law, passed March 27, 1778, a quali- 
 fied voter for senator or member of assembly was required 
 to "deliver his vote viva voce and with an audible voice," 
 in the hearing of the inspectors, one of whom was re- 
 quired to repeat the vote to the clerks, who were required 
 to enter it in the poll lists. A person voting for governor 
 and lieutenant governor was required to vote by ballot, 
 using a "paper ticket," which was required to be "so 
 folded, rolled up, tied, or otherwise closed, as to conceal 
 the writing;" and this ticket was required to be delivered 
 to the inspectors, and by them put into a box prepared 
 for that purpose. 
 
668 Constitutional History of New York. 
 
 It will be observed that under this statute only voters 
 for governor and lieutenant governor possessed the priv- 
 ilege of secrecy in voting, and that persons voting for sen- 
 ators and members of assembly were required to state 
 their choice openly. 
 
 In 1787, the war having closed, the legislature, acting 
 under the authority conferred by the Constitution, 
 changed the method of voting for senators and members 
 of assembly, and required all voting to be by ballot, fol- 
 lowing substantially the "paper ticket" provisions of the 
 act of 1778. This secured secret voting for all state offi- 
 cers then elective; and the Constitution of 182 1 made this 
 provision permanent. 
 
 The Executive. 
 
 Under the first Constitution the governor was required 
 to be a freeholder, and he was chosen for the term of 
 three years. Under the second Constitution the freehold 
 qualification was continued, and in addition the governor 
 was required to be a native citizen of the United States, 
 thirty years of age, and five years a resident of the state. 
 The term was reduced to two years. There was consid- 
 erable difference of opinion in the Convention concerning 
 the term, but with a general agreement that the term of 
 three years should be reduced. The principal reason for 
 the reduction of the term was the larger authority con- 
 ferred on the governor by the new Constitution. There 
 was a strong movement in favor of a one year term, but 
 the majority thought this too short, because not giving the 
 governor sufficient opportunity to formulate policies, and 
 become familiar with public affairs. Provision was made 
 for an election by the legislature in case of a tie in the 
 popular vote. 
 
 The governor's power to prorogue the legislature, con- 
 ferred by the first Constitution, was not continued, but he 
 
The Second Constitution, 1821. 669 
 
 was to have the same right to convene the legislature "on 
 extraordinary occasions." The general powers conferred 
 on the governor were substantially the same, except that 
 his pardoning power was extended to cases of murder ; 
 under the first Constitution the power to pardon in mur- 
 der cases was vested in the legislature. The power to 
 pardon in cases of treason was still excluded from his ju- 
 risdiction, and continued in the legislature. While the 
 pardoning power was under discussion, Judge Piatt re- 
 marked that "the dispensation of mercy is an appropriate 
 duty of the Executive alone, who superintends the execu- 
 tion of the law. A popular assembly is not a fit tribunal 
 to determine in such cases." Mr. Sheldon, in reply, said 
 the governor ought not to have the pardoning power 
 in cases of murder; "in all such cases the culprit should 
 die by the voice of the people." Governor Tompkins pro- 
 posed to except impeachment cases from the governor's 
 pardoning power. Chief Justice Spencer observed that 
 impeachment does not imply a conviction of a crime in 
 the legal sense; and that the officer after removal is in- 
 dictable if the offense is criminal. But it was agreed that 
 the Constitution should be explicit, and the Tompkins 
 amendment was adopted. 
 
 Provision was also made, as in the first Constitution, 
 for the election of the lieutenant governor with the same 
 qualifications and for the same term as the governor. 
 The provision authorizing the lieutenant governor and 
 the president of the senate to act as governor in special 
 emergencies was continued substantially as in the first 
 Constitution. 
 
 A new provision was included in the second Consti- 
 tution, requiring the governor to be paid a stated compen- 
 sation, which should neither be increased nor diminished 
 during his term. 
 
 The further evolution of this subject will be noted later. 
 
670 Constitutional History of New York. 
 
 resulting in a provision fixing the governor's compensa- 
 tion in the Constitution itself. 
 
 Under the first Constitution it was the duty of the gov- 
 ernor "to inform the legislature of the condition of the 
 state, so far as may respect his department ; to recommend 
 such matters to their consideration as shall appear to him 
 to concern its good government, welfare, and prosperity." 
 As a substitute for this provision the second Constitu- 
 tion provided that the governor "shall communicate to 
 the legislature at every session the condition of the state ; 
 and recommend such matters to them as he shall judge 
 expedient." Under the first Constitution it was the cus- 
 tom of the governor to open each session of the legisla- 
 ture by a speech delivered in the presence of both houses, 
 assembled together for this purpose. The motion to 
 change the practice by requiring the governor to commu- 
 nicate by message, instead of by a speech, was made by 
 Peter R. Livingston, and in support of his motion he 
 made the following interesting statement: "The latter 
 mode has been productive of great inconvenience and ex- 
 pense. I had the curiosity once to look over the journals, 
 and I ascertained that it cost $70,000 to the state during 
 ten to fifteen years, in debate about the reply to a govern- 
 or's speech. This speech is a relic of monarchy, founded 
 in the love of pomp and splendor and show. Besides, 
 when the two houses are of different political character, 
 one approves, the other condemns, the speech; and in 
 1814 the assembly spent eleven days in discussing the pro- 
 priety of an answer to the governor's speech, yet we all 
 know that neither a speech nor an answer is legislation. 
 In the general government, until Mr. Jefferson's acces- 
 sion, a speech was delivered by the President and an an- 
 swer was read; but Mr. Jefferson cut up the practice by 
 the roots by sending a message. Besides, for the sake of 
 the harmony due to the proceedings of the two houses, 
 
The Second Constitution, 182 1. 671 
 
 when of different political character, it is best to have a 
 message. We have seen, and might see again, a govern- 
 or on his own carpet, obliged to listen to sentiments which 
 must be odious to him; obliged to submit in quiet to a 
 flagellation, as bitter as political hostility could make it. 
 To be sure, the governor has the last word, and he sends 
 back a reply more bitter, if possible, than the answer ; but 
 all this is injudicious and improper, and will be done away 
 by adopting the proposition I have the honor to make." 
 
 Officers. 
 
 Many changes were made by the second Constitution 
 in the manner of choosing public officers. It has already 
 been noted that nearly 15,000 officers were appointed by 
 the Council of Appointment, and that great abuses had 
 grown up in connection with the exercise of this power 
 by that council. An opinion had long been growing in 
 the state in favor of extending the right of the people to 
 elect officers, and in opposition to the policy of requiring 
 local officers to receive their appointments from Albany. 
 Some changes in this direction were made by the Conven- 
 tion. 
 
 ELECTIVE OFFICERS. 
 
 The governor, lieutenant governor, and members of 
 the legislature. These had been elective under the first 
 Constitution. 
 
 Sheriffs, clerks of counties, including the register of 
 New York, and coroners. These were appointive under 
 the first Constitution. 
 
 All other officers who had previously been elective. 
 
 APPOINTIVE OFFICERS. 
 
 Secretary of state, comptroller, treasurer, attorney gen- 
 eral, surveyor general, commissary general, to be ap- 
 pointed by the legislature. 
 
672 Constitutional History of New York. 
 
 All judicial officers, except justices of the peace, by the 
 governor. 
 
 Justices of the peace, by the board of supervisors and 
 judges of the county court. 
 
 Clerks of courts, by the courts of v/hich they are clerks. 
 
 District attorneys, by the county courts. 
 
 Mayors, by the common councils. 
 
 Masters and examiners in chancery, by the governor 
 and senate. 
 
 Clerk of the court of oyer and terminer and general 
 sessions in the city of New York, by the court of general 
 sessions. 
 
 Special justices and assistants in New York, by the 
 common council. 
 
 Major general, brigade inspectors, and chiefs of the 
 staff departments, by the governor and senate. 
 
 Adjutant general, by the governor. 
 
 Militia officers in general, by the organizations or by 
 officers thereof. 
 
 TENURE. 
 
 Governor and lieutenant governor, two years. The 
 term was three under the first Constitution. 
 
 Senators, four years, and 
 
 Members of Assembly, one year, the same as under the 
 first Constitution. 
 
 Chancellor and justices of the supreme court, during 
 good behavior, or until they attain the age of sixty years, 
 as under the first Constitution. 
 
 Justices of the peace, four years. Under the first Con- 
 stitution they held their office at the pleasure of the 
 Council of Appointment. 
 
 Secretary of state, comptroller, attorney general, sur- 
 veyor general, and commissary general, -three years. 
 Under the first Constitution these officers were subject 
 
The Second Constitution, 1821. 673 
 
 to removal at any time by the Council of Appoint- 
 ment. 
 
 Sheriffs, clerks of counties, register of New York, 
 and coroners, three years. Under the first Constitution 
 sheriffs and coroners were appointed annually. The 
 clerks held their offices during the pleasure of the Coun- 
 cil of Appointment. 
 
 Clerks of courts and district attorneys, three years. 
 No term was fixed under the first Constitution. 
 
 Mayors of cities, one year. 
 
 Masters and examiners in chancery, three years. 
 
 Register and assistant register, during the pleasure 
 of the chancellor. 
 
 The clerk of oyer and terminer and general sessions 
 in New York, during the pleasure of the court. 
 
 Special justice and assistants in New York, four 
 years. 
 
 County court judges and city recorders, five years. 
 
 An official term not fixed by the Constitution might 
 be established by law, and if not so established the offi- 
 cers held during the pleasure of the appointing power. 
 
 IMPEACHMENT. 
 
 The assembly was given the power to impeach all 
 civil officers. This power was vested in the assembly 
 under the first Constitution. 
 
 REMOVAL. 
 
 Under the first Constitution the Council of Appoint- 
 ment had the general power of removal, and this power 
 was exercised quite freely. Much more variety appears 
 on the subject of removal in the second Constitution. 
 
 Several methods of removal are specified in this 
 Constitution. 
 
 By the legislature, on concurrent resolution. — Secre- 
 tary of state, comptroller, attorney general, surveyor 
 Vol. I. Const. Hist.— 43. 
 
674 Constitutional History of New York. 
 
 general, commissary general, and also all officers who 
 held office during good behavior. 
 
 By the senate, on the recommendation of the gover- 
 nor. — Commissioned officers of the militia, masters and 
 examiners in chancery, judges of the county courts, and 
 recorders of cities. 
 
 By the governor. — Sherififs, county clerks, registers, 
 and coroners. 
 
 By the county court. — District attorneys and justices 
 of the peace. 
 
 By the court of general sessions in the city of New 
 York. — Clerk of oyer and terminer, and general sessions 
 of the peace. 
 
 By courts. — Their clerks, except the county clerk. 
 
 The Judiciary. 
 
 The Provincial Constitutional Convention did not 
 spend much time over the judiciary provision of the first 
 Constitution. It found a court of chancery, a supreme 
 court, a court of common pleas, and justices' courts, and 
 it recognized and continued them without substantial 
 change. But, beginning with the Convention of 1821, 
 the structure of our judicial system has always engaged 
 the serious attention of constitutional conventions. We 
 shall have occasion to note the important changes made 
 in this system by the Conventions of 1846, 1867, and 
 1894, and also the fact that the subject of changes in the 
 judiciary was deemed sufficiently important to call for a 
 constitutional commission in 1890, which was charged 
 with the sole duty of considering the judiciary article. 
 This branch of the government received serious attention 
 from the Convention of 1821, but it is apparent that the 
 members of the Convention were not all actuated by the 
 same motives. 
 
 It was suggested during the debate on the judiciary 
 
The Second Constitution, 1821. 675 
 
 article, that there was a settled purpose among the law- 
 yers of the state, and which purpose was shared to a 
 large extent by the people, to make some radical changes 
 in the judicial organization. Some persons were in 
 favor of change in the interest of actual improvement, 
 while it seems quite certain that some favored alterations 
 in the system for the purpose of effecting a change in 
 the personnel of the court. 
 
 One of the great struggles of the Convention was over 
 the judiciary article; and perhaps in no controversy that 
 engaged the attention of the Convention was partisanship 
 more plainly, and even painfully, manifest than in the 
 effort to accomplish an alleged reform in the judiciary, 
 but whose real purpose was to put out of office the judges 
 of the supreme court. This purpose was not disclosed 
 at once, but as the discussion of the various plans of 
 judicial reform proceeded, members of the Convention 
 did not hesitate to declare their intention to provide for 
 a new appointment of supreme court judges upon the 
 adoption of the new Constitution. This instrument (ar- 
 ticle g, § I ) contained a provision that the commissions 
 of all civil officers should expire on the last day of De- 
 cember, 1822. This, of course, included the judges, who 
 held office during good behavior or until they should 
 attain the age of sixty years. So far as the court itself 
 was concerned it was not necessary for the Convention 
 to take any positive action, except to provide additional 
 judges, if deemed necessary. 
 
 The first Constitution took the supreme court as it 
 found it, recognized and continued it, but made no special 
 provision concerning it. This court, established by the 
 act of the colonial legislature in May, 1691, had, at the 
 time of the Revolution, a chief justice and four associate 
 justices, and they comprised the judicial force of the 
 supreme court. The Provincial Constitutional Conven- 
 
676 Constitutional History of New York. 
 
 tion inaugurated the new state supreme court by the 
 election of a chief justice and two associate justices, and 
 by later appointments the membership of the court was 
 increased to five. 
 
 When the Convention of 1821 met, the court was com- 
 posed of Chief Justice Ambrose Spencer, who had been 
 a member of the court seventeen years, William W. Van 
 Ness, who had held ofifice fourteen years, Joseph C. 
 Yates, thirteen years, Jonas Piatt, eight years, and John 
 Woodworth, two years. Under the Constitutional pro- 
 vision which abridged the term of a justice of the su- 
 preme court at the age of sixty years. Chief Justice Spen- 
 cer might have held office until December 13, 1825, Judge 
 Van Ness might have continued in office until 1836, 
 Judge Piatt until June 30, 1829; Judge Yates until 
 November 9, 1828, and Judge Woodworth until Novem- 
 ber 12, 1828, The judges might, therefore, have con- 
 tinued in office several years if the constitutional provi- 
 sion had not been disturbed, or if the court had been 
 continued without affecting the incumbents. 
 
 Three judges — Chief Justice Spencer, and Associate 
 Justices Van Ness and Piatt — were members of the Con- 
 vention, but they do not seem to have made any special 
 effort to be continued in office. They pursued a digni- 
 fied course, and were probably prepared to accept the 
 action of the Convention without complaint. The effort 
 to get rid of the judges succeeded so far as this result 
 could be reached by the Constitution. Judge Van Ness 
 died within two months after the Constitution took effect. 
 Judge Yates was elected governor in November, 1822, 
 and took office with the new Constitution. He appointed 
 as his successor Jacob Sutherland, who had been a mem- 
 ber of the Convention. Judge Woodworth was re- 
 appointed in February, 1823. 
 
 Under the former Constitution there had been four 
 
The Second Cotistitution, 1821. 677 
 
 associate justices. The new Constitution reduced the 
 number to two, and Justices Woodworth and Sutherland 
 received these appointments. John Savage was ap- 
 pointed chief justice in place of Ambrose Spencer. 
 Judge Piatt might have served six and a half years longer 
 before he reached the age limit, and the compulsory re- 
 tirement of the judges apparently meant more to him 
 than to any of the, others. 
 
 The course of this Convention is in marked contrast 
 with the course pursued by later conventions, notably the 
 Convention of 1894, which abolished the superior courts 
 of New York and Buffalo, the court of common pleas 
 of New York, and the city court of Brooklyn, but trans- 
 formed their judges into justices of the supreme court. 
 
 Some of the best lawyers in the Convention were 
 members of the judiciary committee which was appointed 
 on the 1st of September, and consisted of Peter Jay 
 Munro (a nephew of John Jay), Nathan Williams, 
 Jacob Sutherland, Francis Silvester, Henry Wheaton, 
 John Duer, Melancton Wheeler. This committee, on 
 the 24th of September, submitted a report, containing an 
 elaborate plan of a judicial system. The plan provided 
 for the following courts : 
 
 The court for the trial of impeachments, which was 
 also to be the court for the correction of errors; court 
 of chancery; supreme court of judicature; superior court 
 of common pleas ; court of nisi prius ; courts of oyer and 
 terminer, and general gaol delivery; inferior courts of 
 common pleas, to be called county courts; courts of 
 general sessions of the peace; and "such other tribunals 
 of inferior and limited jurisdiction as the legislature may 
 establish, under the restrictions hereinafter mentioned." 
 
 The court of chancery was to consist of a chancellor 
 and the vice chancellor. 
 
 The number of supreme court judges was to be re- 
 
678 Constitutional History of New York. 
 
 duced to four, and the superior court of common pleas 
 was to be composed of a chief justice and three associate 
 justices. 
 
 The existing jurisdiction and powers of the supreme 
 court were continued. 
 
 The superior court of common pleas was to have juris- 
 diction concurrent with the supreme court in civil cases, 
 except as to mandamus, quo warranto, and prohibition. 
 
 The supreme court and the superior court of common 
 pleas were each required to hold four terms each year. 
 
 Courts of nisi prius were to be held by justices of the 
 supreme court or of the superior court of common pleas. 
 
 Courts of oyer and terminer were to be composed of 
 three or more commissioners, and the justices of the 
 supreme court and of the superior court, and judges of 
 the cotmty court were to be such commissioners ex 
 officio; but one of the justices of the supreme court or 
 of the superior court was always a necessary member of 
 the court of oyer and terminer. 
 
 The county court was to be composed of a first judge 
 and three associate judges, who were to be ex officio 
 justices of the peace and judges of the courts of general 
 sessions. 
 
 The county court was to have the jurisdiction then 
 possessed by courts of common pleas, and was also to 
 have jurisdiction to hear appeals from judgments of 
 justices' courts. 
 
 The county court was also to be a court for the "pro- 
 bate and registering of wills and granting letters of ad- 
 ministration," and was to have the powers then possessed 
 by surrogates. 
 
 A special court of probate was to be held for the city 
 and, county of New York. 
 
 Review of proceedings in probate courts was vested in 
 the court of chancery. 
 
The Second Constitution, 1821. 679 
 
 The court of common pleas and the court of general 
 sessions of the peace in New York were continued. 
 
 The chancellor and vice chancellor and justices of the 
 supreme court were to hold office during good behavior, 
 or until they reach the age of sixty-five years, and were 
 subject to removal by the governor, on the "address" 
 of both houses of the legislature. They were prohibited 
 from holding any other office, and were made ineligible 
 to the office of governor or lieutenant governor, for two 
 years after the expiration of their term. 
 
 The judges of the county court were to hold office for 
 five years. 
 
 Certain judges in New York were to hold office for 
 ten years. 
 
 The report was taken up for consideration on the 22d 
 of October, and Mr. Munro, chairman of the committee, 
 made a statement of the reasons which had prompted the 
 committee in proposing this judicial plan. 
 
 The large increase in the business of the court of 
 chancery was the occasion of the proposition to establish 
 the office of vice chancellor, and the growth of population 
 of the state, especially in the western counties, made it 
 necessary to provide more judicial machinery; and it 
 was thought that a sufficiently large judicial force would 
 be provided by establishing the superior court of common 
 pleas, whose four judges, with the four in the supreme 
 court, would make eight for the state. 
 
 Erastus Root offered the following substitute for the 
 first section of the report: 
 
 "The judicial power of this state shall be vested in a 
 court for the trial of impeachments and the correction 
 of errors, to consist of the president of the senate, and 
 the senators; in a supreme court, to consist of a chief 
 justice, and not more than four, nor less than two, as- 
 sociate justices ; in circuit courts, and courts of common 
 
68o Constitutional History of New York. 
 
 pleas, and in justices of the peace, and in such other 
 courts, subordinate to the supreme court, as the legis- 
 lature may from time to time establish. The state shall 
 be divided into a convenient number of districts, subject 
 to alteration, as the public good may require; and for 
 each, a circuit judge shall be appointed. He shall have 
 the same powers as a judge of the supreme court, at his 
 chambers. He shall have power to try issues joined 
 in the supreme court; to preside in courts of oyer and 
 terminer and jail delivery; and, if required by law, to 
 preside in courts of common pleas and general sessions 
 of the peace. The supreme court shall have jurisdiction 
 in all cases in law and equity, and the legislature may, 
 in their discretion, vest chancery powers in other courts 
 of subordinate jurisdiction; provided, however, that the 
 court of chancery, as at present organized, shall continue 
 until the legislature shall otherwise direct." 
 
 It will be noted that the practical result of this sub- 
 stitute, if adopted, would have been the abolition of the 
 court of chancery, and the transfer of its equity powers 
 to the supreme court. This was considered the effect of 
 the resolution, and it was debated accordingly. There 
 was a spirited debate on the question of abolishing the 
 court of chancery, the example of other states and coun- 
 tries being cited by those who favored or opposed its 
 abolition, and the question was discussed on its merits; 
 namely, whether there should be a distinct equity tri- 
 bunal, or whether the supreme court should be vested 
 with the double jurisdiction in law and equity. 
 
 Chancellor Kent took part in the debate, and in the 
 course of his speech called attention to the fact that, from 
 a personal point of view, the abolition of the court would 
 make little difference to him, because he had almost 
 reached the age limit fixed by the Constitution; but he 
 urged the retention of the court as a matter of public 
 
The Second Constitution, 182 1. 681 
 
 interest and benefit, pointing out the advantages accru- 
 ing to the state from a separate equity tribunal, and the 
 difficulties that would ensue if the powers were trans- 
 ferred to the common-law courts. The Chancellor is 
 reported to have said, during the discussion, that "when 
 he was appointed chancellor he was compelled to com- 
 mence a new course of legal study, although he had held 
 the office of chief justice." Of course this was not lit- 
 erally true. It appears from a letter written by him in 
 1828 that when appointed chancellor he had read the 
 equity reports up to that time, and some other works on 
 equity, but he says he "took the court as if it had been 
 a, new institution, and never before known in the United 
 States;" and it is almost literally true that he made the 
 court of chancery in New York. 
 
 After two days' debate Mr. Root's amendment was 
 rejected by a vote of 36 to 73. 
 
 A vote on the first section of the committee's report 
 was reached October 24, and it was rejected by a vote 
 of 33 to 79. Martin Van Buren thought that this vote 
 disposed of the whole report, and that seemed to be the 
 general opinion of the Convention. Various proposi- 
 tions were thereupon submitted in the Convention, in- 
 cluding one by Mr. Van Buren, providing for establish- 
 ing circuits or districts, and the appointment of circuit 
 judges, and also the appointment of vice chancellors. 
 These propositions were submitted to a new committee. 
 
 The next day this committee, through Mr. Munro, its 
 chairman, reported a plan providing for judicial circuits 
 and the appointment of circuit judges who should have 
 the powers of a supreme court judge at chambers, try 
 issues joined in the supreme court, preside at courts of 
 oyer and terminer and jail delivery, and also, when re- 
 quired by law, preside in courts of common pleas and 
 general sessions of the peace. This report also fixed the 
 
682 Constitutional History of New York. 
 
 term of the chancellor and other higher judicial officers 
 during good behavior, or until they reached the age of 
 sixty years, prohibited them from holding any other 
 office, and provided that all votes given for them for any 
 other office should be void. The legislature was author- 
 ized to confer equity powers on courts subordinate to the 
 court of chancery. The office of judge of probate was 
 to be abolished, and his powers and duties devolved on 
 the court of chancery. 
 
 Governor Tompkins made a proposition that the su- 
 preme court consist of a chief justice and not more than 
 four nor less than two associate justices. This was re- 
 jected by a vote of 44 to 64. 
 
 Mr. Buel, discussing these various propositions, said : 
 "What are we about to do? We are about to provide 
 in our Constitution for the removal of the incumbents in 
 our high judicial departments without having altered in 
 any shape their jurisdiction, or the construction of the 
 courts which they compose. By this, what do we say 
 to the world ? We say that we are about to make a con- 
 stitutional provision which has no other object than that 
 of pulling from the bench of our supreme court certain 
 individuals who may have become odious to a portion 
 of the community. This is not worthy of the people of 
 the state of New York, or of this Convention. It will 
 be a disgrace to us." Mr. Buel said he did not take this 
 stand from any particular partiality for these judicial 
 officers, but because he considered it beneath the dignity 
 of so enlightened a body, and because he knew there was 
 a method of reaching such officers by law ; and he thought 
 that that would be the wisest course to pursue in this 
 case, if they had done any thing for which they deserved 
 to be removed. 
 
 Mr. Van Vechten, speaking on the same subject, said 
 that the Convention was assembled for the purpose of 
 
The Second Constitution, 1821. 683 
 
 amending the Constitution; "and no man had ever 
 dreamed of its being for the purpose of dismissing offi- 
 cers from our government. . . . Is it seemly, or is 
 it consonant with the dignity of this Convention, for the 
 purpose of driving these men from office, to insert in 
 the Constitution which we are forming for generations 
 to come, a clause which has no object in view but to 
 gratify personal revenge? We have already declared 
 by our acts that these men shall hold till they arrive at 
 the age of sixty years; and we have also provided that 
 if they shall conduct in such a manner as to forfeit their 
 claim to a continuance in office, a majority of the as- 
 sembly may impeach, and by two thirds of the same, 
 and a majority of the senate, they may be removed. 
 With respect to the .interference of our judges in politics, 
 who has not had to do with politics ? ... It is not 
 till quite lately that we have heard this great outcry. 
 Have we not chosen the judges of our supreme court as 
 electors for President and Vice President of the United 
 States? We have gone hand in hand with these men, 
 approving and leading them forward; and now we are 
 to destroy them at a blow, contrary to the rule which 
 we have ourselves established ; leaving the stain upon our 
 Constitution, that future generations may read our dis- 
 grace with shame and confusion." 
 
 Mr. Root, replying to Mr. Van Vechten, called atten- 
 tion to the fact that the Convention had already decided 
 to terminate the office of senator when the new Consti- 
 tution should take effect, which would put the senators 
 out of office the same as the judges. He said the fact 
 of the interference of the judges in politics was ad- 
 mitted. He said he had never encouraged the judges in 
 their political career, and was not responsible for their 
 perseverance in it; and he raised his "feeble voice" 
 against this "politico-judicial domination." He said he 
 
684 Constitutional History of New York. 
 
 was not disposed to try these judges there, but he left 
 them, with all the other officers, to the appointing power, 
 "to see whether they have so behaved in their official 
 stations as to entitle them to a reappointment." 
 
 The consideration of the judiciary article was resumed 
 on the 1st of November, when Matthew Carpenter of 
 Tioga offered a proposition in substance that the su- 
 preme court consist of a chief justice and two associate 
 justices, that the state be divided into not less than four 
 nor more than eight districts, that a judge be appointed 
 for each district with the powers of a supreme court 
 justice at chambers, and also with power to preside at 
 trials of issues, and in courts of oyer and terminer and 
 general gaol delivery, and who might be vested with 
 further equity powers by the legislature. 
 
 This plan was quite similar to the plan proposed by 
 the second committee, and which, as a whole, had al- 
 ready been rejected. It was understood to contemplate 
 the destruction of the supreme court as then constituted, 
 and the creation of a new one. 
 
 Mr. Clarke, speaking on this proposition, said that its 
 object was not merely to remove the present incumbents, 
 but to establish a useful system for the state. The su- 
 preme court was to be a court of appellate jurisdiction 
 only, and three judges would be sufficient for the appel- 
 late court. He further suggested that it was question- 
 able whether, from feelings of delicacy, men should be 
 continued in office if their services were no longer re- 
 quired. He urged the increase of the judiciary force by 
 providing for district judges, and said that, to a large 
 part of the state, the present chancery system was worse 
 than useless. 
 
 Judge Piatt and Judge Van Ness do not seem to have 
 taken any part in the debate. 
 
 On the 2d of November, while the Carpenter proposi- 
 
The Second Constitution, 1821. 685 
 
 tion was under consideration, Chief Justice Spencer, ap- 
 parently speaking for all the members of the court, made 
 some observations on the judicial system, showing the 
 large increase in business, incident to the growth of 
 population, and the large number of counties which had 
 been created, and stated that when there were four judges 
 there were twenty counties, and now, with five judges, 
 there are fifty-two counties. He said it was not to be 
 disguised that the judges had not sufficient time for the 
 performance of their duties. He spoke of the labors of 
 the judges and of their efforts to keep up with the work, 
 and urged an increase of the judicial force by providing 
 for circuit judges. Judge Spencer further said that he 
 took a seat upon the bench of the supreme court eighteen 
 years ago, since which his whole time had been devoted 
 to a discharge of the duties incumbent on him in that 
 station. The salary of that ofifice had barely enabled 
 him to support his family and educate his children, with- 
 out laying up a dollar from that source, more than he had 
 when he accepted the office. He had abandoned his 
 profession, which was far more lucrative than the office 
 which he accepted, and he received that appointment 
 under the sanction of the Constitution, with a pledge that 
 he should hold it till he arrived at the age of sixty, unless 
 removed for mal-conduct. His term of service, by that 
 limitation, would expire in about four years; but if the 
 public good required his removal, amen to it. The Con- 
 vention had an undoubted right to do it if they thought 
 proper, notwithstanding it would appear rational that 
 those who had received that office under the old Con- 
 stitution should continue till their term expired by law. 
 He did not ask this, but merely suggested it for the con- 
 sideration of the Convention. 
 
 He submitted a plan for the appointment of as many 
 circuit judges as the legislature might prescribe. In the 
 
686 Constitutional History of New York. 
 
 course of his speech Judge Spencer said this was the last 
 opportunity he would have to address the Convention, 
 as his official duties would require him to leave town the 
 next day. In view of the avowed purpose of several 
 prominent members of the Convention to put Chief Jus- 
 tice Spencer and his associates out of office, his speech 
 showed a calm and dignified presentation of the subject 
 from one who had a deep personal interest in the result. 
 
 The debates on this subject do not make very pleasant 
 reading, and, looking back on the Convention after 
 eighty years, the discussion does not present an agreeable 
 picture. 
 
 Mr. Root spoke with some bitterness, saying, among 
 other things, that for his part, he longed to see the eman- 
 cipation of the state from judicial thraldom. Under 
 that kind of slavery had this state groaned ever since he 
 had been a member of it ; and whenever a member of the 
 bar had undertaken to lift his voice, he had had cause 
 to rue the day that he undertook it. He also said : "The 
 gentlemen of the bar in the country have seen and felt 
 the evils of this system; and, as you have been already 
 told, it is important that your high judicial officers be 
 above suspicion; otherwise they are worse than useless. 
 If they are suspected, they cannot render to the people 
 justice and equity to their satisfaction. Then bring them 
 before the proper appointing power, and see whether 
 they are free from suspicion, and whether the people are 
 willing to reappoint them." 
 
 Peter R. Livingston made a severe attack on the ju- 
 diciary. He said that "characters have been permitted 
 to remain in your judiciary department, who have been 
 implicated with attempts to procure corrupt laws. It 
 has been that department which has prevented the pas- 
 sage of wholesome laws which the public good required. 
 It has been that department which has given sanction to 
 
The Second Constitution, 1821. 687 
 
 laws unfriendly to the public good. It has been some 
 of that department who have become notorious, in every 
 part of your state, in electioneering campaigns; who 
 have repeatedly attended political meetings, and spoken 
 in them over and over again. . . . Can a person, 
 after having spent half of his life in politics, divest him- 
 self of all political prejudices and partialities upon a 
 bench of justice? If he can, he is something more than 
 man." 
 
 Mr. Wheaton proposed that the limitation of the num- 
 ber of judges should not take efifect until the number 
 had been reduced to three, by death, resignation, removal, 
 or abridgment of the term by the age limit. This was 
 rejected by a vote of 39 to 66. 
 
 This proposition seemed fair and reasonable and would 
 probably have been adopted in a modem convention, 
 especially if the element of personal hostility to an in- 
 cumbent did not exist. The sequel shows that the num- 
 ber of judges would actually have been reduced to three 
 within two months after the Constitution took effect, for 
 it has already been noted that Judge Yates resigned to 
 take the office of governor, and Judge Van Ness died in 
 February, 1823. This would have left in office Chief 
 Justice Spencer and Associate Justices Piatt and Wood- 
 worth. 
 
 General Carpenter's proposition was adopted by a vote 
 of 62 to 53. After some further discussion the judiciary 
 plan was adopted, and appears as article 5 of the Con- 
 stitution. This article provides in substance : 
 
 For a court for the trial of impeachments and the cor- 
 rection of errors, with the membership, and, substan- 
 tially, the powers, provided by the first Constitution. 
 
 The power of impeachment vested in the assembly 
 under the first Constitution was continued. 
 
 The tenure of office of chancellor and justice of the 
 
688 Constitutional History of New York. 
 
 supreme court was also continued, with an age limit at 
 sixty years. 
 
 The supreme court was to consist of a chief justice 
 and two associate justices. 
 
 The state was to be divided by law into not less than 
 four nor more than eight circuits, and a judge was to 
 be appointed for each circuit in the same manner, and 
 hold his office for the same tenure, as a justice of the 
 supreme court, and who should possess the powers of a 
 justice of the supreme court at chambers, and in the trial 
 of issues joined in the supreme court, and in courts of 
 oyer and terminer, and gaol delivery. 
 
 The legislature was authorized to vest equity powers 
 in the circuit judges and in the county courts, or in sub- 
 ordinate courts subject to the appellate jurisdiction of 
 the chancellor. 
 
 County judges and recorders were to hold office for 
 five years, subject to removal by the senate, on the recom- 
 mendation of the governor, for cause. 
 
 The chancellor, supreme court justices, and circuit 
 judges were prohibited from holding any other office or 
 public trust, and all votes for them for an elective office 
 given by the legislature or the people were to be void. 
 
 Four important changes had been accomplished by the 
 new judiciary article; namely, the supreme court had 
 been reorganized and its membership reduced, and the 
 offices of the incumbents were to be terminated when 
 the Constitution took effect. The working force of the 
 supreme court had been increased from five to eleven 
 judges, including circuit judges. The tenure of office 
 of local judges had been limited to a fixed term, and the 
 higher judicial officers had been prohibited from becom- 
 ing candidates for office. This was the net result of a 
 long and fierce struggle. 
 
 It is probable that if the judiciaiy article had been 
 
The Second Constitution, 1821. 689 
 
 considered solely on its merits it would have been dis- 
 posed of m much less time, and with much less discus- 
 sion ; but the introduction into the debate of the personal 
 element, by the attack on the judges, and the manifest 
 intention of the leaders of the Convention to exclude 
 these judges from office by operation of the new Con- 
 stitution, gave the discussion a character and tone not 
 discovered in any other part of the work of the Conven- 
 tion. 
 
 In the course of the debate the suggestion was made 
 that, so far as ccmcemed the termination of their offices, 
 the judges would fare no worse than many other public 
 officers. This was true enough, for, in fact, the Con- 
 stitution shortened the term of the Governor six months, 
 and cut off the terms of the senators, the chancellor, and 
 all other appointive officers. But these officers were not 
 the subject of attack, like the judges, and the judiciary 
 situation would have appeared much less objectionable if 
 the criticism of the bench could have been omitted, and 
 the general proposition asserted that the new Constitu- 
 tion should make a clean sweep of all appointive officers, 
 treating them all alike, with a complete reorganization of 
 the various departments of public service. 
 
 Before leaving this subject it should be noted that the 
 legislature, on the 17th of April, 1823, passed a law for 
 the purpose of putting into operation the judiciary pro- 
 visions of the Constitution, among other things provid- 
 ing for eight circuits corresponding with the senate dis- 
 tricts established by the Constitution; for the appoint- 
 ment of a judge in each circuit; and conferring on the 
 circuit judges, in addition to the powers conferred on 
 them by the Constitution, "concurrent jurisdiction with 
 the chancellor in all matters and causes in equity, of 
 every description and character, subject, however, in all 
 cases, to the appellate jurisdiction of the chancellor." 
 
 Vol. I. Const. Hist.— 44. 
 
690 Constitutional History of New York. 
 
 The circuit judges were required to hold the necessary- 
 terms of courts of equity within their circuits.' 
 
 April 23, Governor Yates appointed eight circuit 
 judges, three of whom, Ogden Edwards, Nathan Wil- 
 liams, and Samuel Nelson, had been members of the 
 Convention. Thus, the new judicial machinery was set 
 in motion, and continued without constitutional change 
 until remodeled by the Convention of 1846. 
 
 Chancellor Kent was permitted to continue in office 
 until he reached the age limit, and he retired on the 31st 
 of July, 1823, after more than twenty-five years of most 
 distinguished and honorable service in the supreme court 
 and the court of chancery. 
 
 Canals. 
 
 The canals made their first appearance in the Consti- 
 tution in 1 82 1. This great system of internal water- 
 ways was under construction when this Convention met. 
 For many years the subject of constructing canals had 
 been agitated and considered by the people of the state, 
 but the progress of sentiment in favor of building the 
 great canals had been somewhat slow. The movement 
 was well under way when it was interrupted by the War 
 of 1812, and it seemed for a time as if the project would 
 have to be abandoned. Soon after the war, however, it 
 was revived with renewed energy, and carried to com- 
 pletion. The limits and scope of this work will not per- 
 mit a detailed history of the canals, but they have played 
 such an important part in the constitutional, local, and 
 political history of the state that a brief reference to 
 some of the more prominent incidents connected with the 
 development of our canal policy may not be out of place 
 here, as an introduction to the consideration of the rela- 
 tions which the canals have sustained to the evolution of 
 the Constitution, and also for the purpose of showing the 
 
The Second Constitution, 1821. 691 
 
 condition of public affairs which prompted the Conven- 
 tion of 1 82 1 to give the canals even the limited notice 
 virhich they received in the new Constitution. 
 
 It will be observed that the attention given to the 
 canals by this Convention was not of a creative sort, 
 but was intended rather to recognize conditions estab- 
 lished by statutes incident to the construction of the 
 canals, and to crystallize in the Constitution itself the 
 canal policy already established by the legislature. It 
 will be shown under later Constitutions how this subject 
 developed and grew, until it reached such a magnitude 
 as sometimes to engross a large share of the attention of 
 the people of the state. 
 
 1724, November 10. Cadwallader Colden, for forty 
 years surveyor general of the province of New York, 
 in a report to Governor Burnet, on the fur trade 
 with the Indians, spoke of "the carrying place between 
 the Mohawk river and the river that leads into the Oneida 
 lake, which carrying place is only 3 miles long, except 
 in very dry weather, when they are obliged to carry 2 
 miles further ; from thence they go with the current down 
 the Onondaga river to the Cataracqui lake (Ontario). 
 
 1768, August 17. Sir Henry Moore, governor of the 
 province of New York, in a letter to the Earl of Hills- 
 borough, describing a late tour to the central part of the 
 province, said that he went up as far as the Canajoharie 
 falls on the Mohawk river. "Here is a carrying place 
 about I mile in length, and all boats going down or up 
 the river are obliged to unload and be carried over land. 
 As this fall is the only obstruction to the navigation be- 
 tween Fort Stanwix and Schenectady, my intention was 
 to project a canal on the side of the falls, with sluices 
 on the same plan as those built on the grand canal in 
 Lanquedoc, and I stayed a whole day there, which was 
 employed in measuring the falls and examining the 
 
692 Constitutional History of New York. 
 
 ground for that purpose." He further said that he in- 
 tended to lay the matter before the "legislative bodies" 
 at their next meeting, and request them to carry into 
 execution the plan of constructing such a canal. 
 
 1768, December 16. Governor Moore sent a special 
 message to the Colonial Assembly, in which he called 
 their attention to the navigation of the Mohawk river, 
 as follows: "The obstruction of the navigation of the 
 Mohawk river between Schenectady and Fort Stanwix, 
 occasioned by the falls of Canajoharie, has been con- 
 stantly complained of, though it is obvious to all who 
 have been conversant in matters of this kind that the 
 difficulty is easily to be removed by sluices, upon the plan 
 of those in the great canal of Lanquedoc, in France, 
 which was made to open a communication between the 
 Atlantic and the Mediterranean. The opportunity I had 
 in my tour, last summer, of examining this carrying 
 place, and of measuring the falls, has encouraged me to 
 recommend to the house of assembly the improvement of 
 our inland navigation as a matter of the greatest im- 
 portance to the province, and worthy of their serious 
 consideration." The Colonial Assembly took no action 
 in the matter. 
 
 1774. Governor William Tryon, in a general report 
 of the affairs of the province, says that a "short cut 
 across the carrying place (Fort Stanwix) might be made 
 into Wood creek, which runs into the Oneida lake, thence 
 through the Onondaga river into Lake Ontario." He 
 also suggested that north of Fort Edward, on the upper 
 Hudson, it seemed practicable to "open a passage by 
 locks, etc., to the waters of Lake Champlain." 
 
 1776, April. General Philip Schuyler suggested a 
 canal between Hudson's river and Lake Champlain. 
 Later in the season he was directed to "take measures 
 for clearing Wood creek at Skeenesborough (White- 
 
The Second Constitution, 1821. 693 
 
 hall), constructing a lock there, and taking the level of 
 the waters falling into the Hudson at Fort Edward, and 
 into Wood creek." He completed the survey for the 
 projected canal. Lossing's Philip Schuyler, vol. 2, pages 
 40, 104. 
 
 '^777' July. Gouvemeur Morris, in a conversation 
 with Morgan Lewis and General Philip Schuyler, at 
 Fort Edward, said: "That at no very c^stant day, the 
 waters of the great western seas would, by the aid of 
 man, break through their barriers, and mingle with 
 those of the Hudson. . . . That numerous streams 
 passed these barriers through natural channels, and that 
 artificial ones might be conducted by the same routes." 
 Related by Morgan Lewis in a letter to Harmanus 
 Bleecker, dated May 26, 1828. 
 
 1783, July. General Washington, after the War of 
 the Revolution had actually ended, and while waiting for 
 the final treaty of peace, in company with Governor 
 George Clinton, made a tour of the northern and central 
 parts of the state, traveling in all about 750 miles, most 
 of the way on horseback. Washington in a letter to 
 Chevalier de Chastellux, dated October 12, 1783, said: 
 "I have, lately, made a tour through the lakes George 
 and Champlain, as far as Crown Point; then returning 
 to Schenectady, I proceeded up the Mohawk river to 
 Fort Schuyler, crossed over to Wood creek, which 
 empties into the Oneida lake, and affords the water com- 
 munication with Ontario ; I then traversed the country to 
 the head of the eastern banks of the Susquehanna, and 
 viewed the lake Otsego, and the portage between that 
 lake and the Mohawk river at Canajoharie. Prompted 
 by these actual observations, I could not help taking a 
 more contemplative and extensive view of the vast in- 
 land navigation of these United States, and could not but 
 be struck with the immense diffusion and importance of 
 
694 Constitutional History of New York. 
 
 it, and with the goodness of that Providence who has 
 dealt his favors to us with so- profuse a hand. Would 
 to God we may have wisdom enough to improve them ! 
 I shall not rest contented until I have explored the west- 
 ern country, and traversed those lines (or a great part of 
 them), which have given bounds to a new empire." 
 
 1784, November 3. Christopher Colles, an engineer, 
 presented to the assembly a memorial proposing improve- 
 ments in the navigation of the Mohawk river, and re- 
 quested state aid for this purpose. The memorial was 
 also presented to the senate, but no action was taken 
 except to refer it to a committee, which made no report. 
 
 1784, November 6. The assembly committee to 
 whom the Colles memorial was referred made a report, 
 which was concurred in, to the effect that the "laudable 
 proposition merits encouragement, but that it would be 
 inexpedient for the legislature to cause that business to 
 be undertaken at public expense." The committee sug- 
 gested that "if Mr. Colles, with a number of adventurers 
 (as by him proposed), should undertake it, they ought 
 to be encouraged by a law giving and securing unto them, 
 their heirs and assigns forever, the profits that may arise 
 by the transportation, under such restrictions and regu- 
 lations as shall appear to the legislature necessary for 
 that purpose ; and authorizing them to execute that work 
 through any lands or improvements on payment of the 
 damages to the proprietors, as the same shall be assessed 
 by a jury." 
 
 1785, March 31. Mr. Colles presented another peti- 
 tion relating to the removal of obstructions in the Mo- 
 hawk river. 
 
 1785, April 5. The committee to whom the Colles 
 memorial was referred made a report, which was con- 
 curred in, that the objects sought "would be productive 
 of the most beneficial consequences to the state;" and 
 
The Second Constitution, 1821. 695 
 
 recommended an appropriation of $125 to enable Mr. 
 Colics to make an "essay" and lay a draft thereof before 
 the legislature at their next meeting. 
 
 1786, February i. Christopher Colles presented a 
 petition and report relative to the navigation of the Mo- 
 hawk river. Following this report a bill was introduced, 
 but not passed, "for improving the navigation of the 
 Mohawk river, Wood creek and Onondaga river, with 
 a view of opening an inland navigation to Oswego, and 
 for extending the same, if practicable, to Lake Erie." 
 
 1787. The possibilities of water communication be- 
 tween the Great Lakes and the ocean were considered not 
 only by conservative statesmen and practical engineers, 
 but the idea was expressed in the general literature of 
 this period. A notable instance of the effect of the policy 
 of expansion, which gave promise of such large results 
 to the young nation just beginning a great career, and 
 which inspired the imagination with unbounded hopes 
 of results to be achieved by the development of arts, 
 literature and commerce, is found in the ambitious poem 
 called "The Vision of Columbus," published this year 
 by Joel Barlow, one of the early American poets, and 
 dedicated to Louis XVI., of France. In this "vision" 
 the great discoverer witnesses the unfolding of America's 
 greatness, including many aspects of growth and devel- 
 opment now familiar to the world. Among other things 
 there is presented to him the scene 
 
 "Where laboring Hudson's glassy current strays, 
 
 York's growing walls their splendid turrets raise; 
 Albania, rising in her midland pride, 
 
 Rolls her rich treasures on his lengthening tide." 
 
 But the spirit of prophecy was upon him, and he saw 
 far beyond the flowing tides of the Hudson, and the 
 growing cities on her shores. 
 
696 Constitutional History of New York. 
 
 "He saw, as widely spreads the unchannel'd plain. 
 Where inland realms for ages bloom'd in vain, 
 Canals, long-winding, ope a watery flight, 
 
 And distant streams and seas and lakes unite." 
 
 "From fair Albania, tow'rd the falling sun. 
 
 Back thro' the midland, lengthening channels run, 
 Meet the far lakes, their beauteous towns that lave. 
 And Hudson join to broad Ohio's wave." 
 
 These quotations remind us of the speeches of Dr. 
 Hayes in the assembly of 1878, when, with poetic 
 prose, he so eloquently urged the adoption of a policy 
 under which New York should continue to grow and 
 prosper and utilize the Hudson in transporting an ex- 
 panding commerce brought to it through the Erie canal. 
 We recall also Judge Cady's speech in the Convention of 
 1894, in which he pointed out the close, if not insepa- 
 rable, connection between that canal and the "sovereignty 
 and material prosperity of an imperial state." 
 
 1788, September. Elkanah Watson, in his Journal, 
 suggested a canal connecting the Mohawk river with 
 Wood creek, and, by other locks and canals, making a 
 communication between Hudson's river and Lake On- 
 tario. 
 
 1791, January 5. Governor George Clinton, in his 
 speech to the legislature, said that "our frontier settle- 
 ments, freed from the apprehensions of danger, are 
 rapidly increasing, and must soon yield extensive re- 
 sources for profitable commerce; this consideration 
 forcibly recommends the policy of continuing to facilitate 
 the means of communication with them, as well to 
 strengthen the bands of society as to prevent the produce 
 of those fertile districts from being diverted to other 
 markets." 
 
 1 79 1, March 24, chapter 53. The commissioners of 
 the Land Office were authorized to cause the explora- 
 
The Second Constitution, 1821. 697 
 
 tion, and the necessary survey, of the ground situated 
 between the Mohawk river, at or near Fort Stanwix, and 
 the Wood^ creek, in the county of Herkimer; and also 
 between the Hudson river and Wood creek, in the county 
 of Washington; and to cause an estimate to be made of 
 the probable expense that would attend the making of 
 canals sufficient for loaded boats to pass, and report the 
 same to the legislature at their next meeting. One hun- 
 dred pounds were appropriated for expenses. 
 
 1792, January 5. Governor George Clinton, in his 
 annual speech to the legislature, referred to the act of 
 1 79 1, requiring the commissioners of the Land Office to 
 make an examination concerning proposed canals, and 
 submitted their report, "which ascertains the practica- 
 bility of effecting this object at a very moderate ex- 
 pense; and I trust that a measure so interesting to the 
 community will continue to command the attention due 
 to its importance, and especially as the resources of the 
 state will prove adequate to these and other useful im- 
 provements without the aid of taxes." 
 
 1792, March 30. Chapter 40 provided for the incor- 
 poration of two lock navigation companies; one, the 
 Western Inland Lock Navigation Company, "for the 
 purpose of opening a lock navigation from the now navi- 
 gable part of Hudson's river, to be extended to Lake 
 Ontario and to the Seneca lake;" and the other, the 
 Northern Inland Lock Navigation Company, for a like 
 purpose from the now navigable part of Hudson's river 
 to Lake Champlain. A subsidy of $25,000 was to be 
 paid by the state, — one half to each, — as a "free gift;" 
 and the canals were to be completed within fifteen years. 
 Amended as to some details by acts passed December 
 20, 1792 (chap. 8), March 9, 1793 (chap. 49), and 
 March 31, 1795 (chap. 38). 
 
 1794, January 7. Governor George Clinton, in his 
 
698 Constitutional History of New York. 
 
 annual speech to the legislature, referring to the lock 
 navigation companies and their work, said that, "although 
 the care of improving and opening these navigations be 
 committed to private companies, they will require, and no 
 doubt, from time to time, receive, from the legislature 
 every fostering aid and patronage commensurate to the 
 great public advantages which must result from the im- 
 provement of the means of intercourse." 
 
 1796, January 6. Governor John Jay, in his annual 
 speech to the legislature, said : "The ultimate connection 
 that subsists between our agriculture, commerce, and 
 navigation, strongly recommends the policy of facilitating 
 and multiplying the means of intercourse between differ- 
 ent parts of the state." 
 
 1796, April 'II. Chapter 61 authorized the state treas- 
 urer to loan the Western Inland Lock Navigation Com- 
 pany £15,000, to be secured by mortgage of the com- 
 pany's property at Little Falls ; also authorized the keeper 
 of military stores to loan to the company a ton and a half 
 of powder. 
 
 1796. The Western Company completed a canal at 
 Little Falls 2^4 miles long, with five locks, also a canal at 
 German Flats, 1% miles in length. 
 
 1797. The Western Company completed a canal from 
 the Mohawk to Wood creek, i}i miles only, making a 
 total of 5^4 miles opened by the company in two years. 
 The character of the work is indicated by the fact that 
 there were nine locks in these three canals. 
 
 1797, March 17. Chapter 36 authorized the Western 
 Inland Lock Navigation Company to receive $250,000 
 from Wilhelm Willink and others, aliens, who, in con- 
 sideration of such payment, were to receive privileges 
 additional to those conferred by chapter 58, Laws 1796, 
 regarding their right to hold land in this state. 
 
 1798, April 5. Chapter 92 incorporated the Niagara 
 
The Second Constitution, 1821. 699 
 
 Canal Company "for the purpose of opening a canal and 
 lock navigation between the waters of Lake Erie and 
 those of Lake Ontario, from the most convenient place 
 above the falls of Niagara at or near Steadman's landing, 
 to the most convenient place below said falls, and nearly 
 opposite to Queens Town landing." The company was 
 also authorized to use the water in the canal for hydraulic 
 or manufacturing purposes, or lease, let, grant, or convey 
 the same for a limited time. The canal was to be com- 
 pleted within ten years, and the canal locks were to be 
 large enough to allow the free passage of boats 70 feet 
 long, 16 feet wide, and 4 feet draught. The act author- 
 ized the use of state lands for the canal, and 100 feet on 
 each side thereof for towing paths, 5 acres at each end 
 of the canal for the erection of buildings, "and the further 
 quantity of 40 acres in one or more place or places in 
 squares, as the said corporation shall judge most con- 
 venient, for erecting mills and other hydraulic works," 
 with the right to take from such land timber, stone, and 
 other materials for the necessary use of the company. 
 
 1800, December 20. Gouvemeur Morris, in a letter 
 to John Parish, said that "one tenth of the expense borne 
 by Britain in the last campaign would enable ships to 
 sail from London through Hudson's river into Lake 
 Erie." 
 
 1 80 1, Conversation in Washington, D. C, soon after 
 tiie Parish letter, between Gouvemeur Morris, Robert 
 Morris, and others. Gouvemeur Morris suggested tap- 
 ping Lake Erie, and bringing the waters of that lake to 
 the Hudson by an inclined plane or by a water table. 
 Spark's Life and Writings of Gouvemeur Morris, vol. i, 
 page 499. See also Lossing's Life and Times of Philip 
 Schuyler, vol. i, page 471. 
 
 1802, April 2. Chapter 97 authorized the comptroller, 
 
700 Constitutional History of New York. 
 
 on behalf of the state, to take stock in the Western Inland 
 Lock Navigation Company. 
 
 1803. Conversation at Schenectady between Gouver- 
 neur Morris and Simeon De Witt, surveyor general of 
 New York, in which Mr. Morris suggested "tapping Lake 
 Erie and leading its waters in an artificial river directly 
 across the country to Hudson's river." 
 
 Mr. De Witt, in a letter to William Darby, dated Feb- 
 ruary 25, 1822, relating this conversation and other inci- 
 dents, said that "the merits of first starting the idea of a 
 direct communication by water between Lake Erie and 
 Hudson's river, unquestionably belongs to Mr. Gouver- 
 neur Morris." 
 
 1806, December 2. President Jefferson, in his annual 
 message to Congress, suggested the application of the 
 surplus revenues to the "great purposes," among others, 
 "of roads and canals. By these operations new channels 
 of communication will be opened between the states ; the 
 lines of separation will disappear; their interests will be 
 identified, and their union cemented by new and indis- 
 soluble ties." 
 
 1807, March 2. The United States Senate adopted 
 the following resolution : 
 
 "Resolved, that the Secretary of the Treasury be 
 directed to prepare and report to the Senate, at their 
 next session, a plan for the application of such means as 
 are within the power of Congress, to the purposes of 
 opening and making canals; together with a statement 
 of the undertakings of that nature which, as objects of 
 public improvements, may require and deserve the aid 
 of government; and also a statement of works of the 
 nature mentioned which have been commenced, the prog- 
 ress which has been made in them, and the means and 
 prospect of their being completed, and such information 
 
The Second Constitutionj 1821. 701 
 
 as, in the opinion of the Secretary, shall be material in 
 relation to the objects of this resolution." 
 
 1808, January 26. Governor Daniel D. Tompkins, in 
 his annual speech to the legislature, referring to the fact 
 that our external commerce was almost entirely cut off, 
 and that it was not improbable that an appeal to arms 
 would soon be made, said it was "peculiarly important 
 to adopt all measures in our power, in order to increase 
 the means of supplying ourselves, and to encourage 
 those arts which contribute to the support and comfort of 
 human life; to facilitate interior communication, and to 
 invigorate the enterprising spirit of our country." 
 
 1808, February 4. Joshua Forman presented a con- 
 current resolution in the assembly, providing for a joint 
 committee of the senate and assembly "to take into con- 
 sideration the propriety of exploring and causing an 
 accurate survey to be made of the most eligible and direct 
 route for a canal, to open communication between the 
 .tide waters of the Hudson and Lake Erie, to the end that 
 Congress may be enabled to appropriate such sums as 
 may be necessary to the accomplishment of that great 
 national object." The senate concurred in the resolution. 
 
 1808, March 21. The joint committee made a report 
 favoring a canal between the Hudson river and Lake 
 Erie, referring to the action of the President in "recom- 
 mending an appropriation of a portion of the surplus 
 revenues for improving by canals the inland navigation 
 of the country;" presenting for the consideration of the 
 national government the state of New York "as pre-emi- 
 nently distinguished on the map of our country for its 
 commercial advantages ;" and urging "that speedy meas- 
 ures ought to be adopted on the part of this state for 
 ascertaining the best route of communication by canals 
 between the tide waters of Hudson river and the great 
 western lakes, and for making an accurate survey and 
 
702 Constitutional History of New York. 
 
 charts, to be transmitted to the President of the United 
 States." 
 
 The report was accompanied by a resolution, presented 
 by the committee, which was adopted the same day, and 
 concurred in by the senate April 6, directing the surveyor 
 general to make a survey, map, and chart of a route for a 
 canal between Hudson river and Lake Erie ; and transmit 
 a copy of the map and chart to the President of the United 
 States. 
 
 1808, April 4. Albert Gallatin, Secretary of the Treas- 
 ury, in compliance with the Senate resolution of March 
 2, 1807, made a report to the Senate, which included sur- 
 veys and estimates for a canal between Hudson river and 
 Lake Champlain, between Hudson river and Lake On- 
 tario, by the Mohawk river and Wood creek, and between 
 Lake Ontario and Lake Erie, around Niagara Falls. The 
 report refers to the incorporation of the Northern, West- 
 ern, and Niagara canal companies, describing the work 
 which had then been done by each. 
 
 1808, April II. $600 was appropriated for the ex- 
 penses of the surveyor general. 
 
 1808, June II. James Geddes was appointed by the 
 surveyor general to make the survey required by the 
 foregoing resolution of the legislature. 
 
 1809, James Geddes made his report to the surveyor 
 general. 
 
 1810, March 13. Senator Jonas Piatt, of Oneida 
 county, afterwards a justice of the supreme court, offered 
 a resolution, which was concurred in by the assembly, 
 appointing a commission, composed of Gouvemeur 
 Morris, Stephen Van Rensselaer, DeWitt Clinton, Simeon 
 De Witt, William North, Thomas Eddy, and Peter B. 
 Porter, to explore and survey routes for canals from 
 Hudson river to Lake Ontario and Lake Erie. 
 
The Second Constitution, 1821. 703 
 
 1810, April 5. The legislature appropriated $3,000 
 for the expenses of the commission. 
 
 181 1, January 29. Daniel D. Tompkins, in his annual 
 speech to the legislature, referring to the report of the 
 commissioners appointed in 1810, said: "The import- 
 ance of that subject highly merits, and, I doubt not, will 
 receive, your early and serious attention." 
 
 181 1, March 2. The commissioners appointed under 
 the Piatt resolution submitted an extended report "drawn 
 by the masterly pen of Gouverneur Morris," treating the 
 whole subject with great detail, estimating the cost of 
 the canal at $5,000,000, with the following suggestions : 
 
 "It remains, therefore, to determine whether this canal 
 should be at the cost of this state or the Union. If the 
 state were not bound by the Federal band with her sister 
 states, she might fairly ask compensation from those who 
 own the soil along the great lakes for the permission to 
 cut this canal at their expense; or her statesmen might 
 deem it still more advisable to make the canal at her own 
 expense, and take for the use of it a transit duty, raising 
 or lowering the impost, as circumstances might direct 
 for her own advantage. This might be the better course 
 if the state stood alone. But, fortunately for the peace 
 and happiness of all, this is not the case; we are con- 
 nected by a bond which, if the prayers of good men are 
 favorably heard, will be indissoluble. It becomes proper, 
 therefore, to resort for the solution of the present ques- 
 tion, to principles of distributive justice. That which 
 presents itself is the trite adage that those who participate 
 in the benefit should contribute to the expense. . . . 
 The wisdom as well as justice of the national legislature 
 will, no doubt, lead to the exercise on their part of 
 prudent munificence." 
 
 181 1, March 2. DeWitt Clinton, following the pres- 
 entation of the foregoing report, asked for and obtained 
 
704 Constitutional History of New York. 
 
 leave of the senate to bring in a bill, which was passed 
 on the 8th of April, "to provide for the improvement of 
 the internal navigation of the state." The act contained 
 the following preamble : 
 
 "Whereas a communication by means of a canal navi- 
 gation between the Great Lakes and Hudson's river will 
 aicourage agriculture, promote commerce and manufac- 
 tures, facilitate a free and general intercourse between 
 different parts of the United States, and tend to the ag- 
 grandizement and prosperity of the country, and consoli- 
 date and strengthen the Union." 
 
 The commissioners were authorized to consider "all 
 matters relating to the said inland navigation," and to 
 make application on behalf of this state to the Congress 
 of the United States, or to the legislature of any other 
 state or territory, to co-operate and aid in this under- 
 taking. The act appointed a commission consisting of 
 Gouverneur Morris, Stephen Van Rensselaer, De Witt 
 Clinton, Simeon De Witt, William North, Thomas Eddy, 
 Peter B. Porter, Robert R. Livingston, and Robert 
 Fulton, and appropriated $15,000 for their use. 
 
 1812, March 14. The commissioners submitted to the 
 legislature a report of their proceedings, from which it 
 appears that De Witt Clinton and Gouverneur Morris 
 were especially deputed to visit Washington, and present 
 to the President and Congress the question of national 
 aid in the project of constructing a canal across the state 
 of New York. President Madison seems to have favored 
 the canal, but withheld his approval of the plan of na- 
 tional aid, on account of his scruples concerning the 
 interpretation of the Constitution. He submitted the 
 matter to Congress by a special message, transmitting a 
 copy of the New York statute, but without any recom- 
 mendation. 
 
 Congress, after some fluctuations of sentiment among 
 
The Second Constitution, 1821. 705 
 
 members of the committee to which the matter was 
 referred, declined to engage in the project of the proposed 
 canal. 
 
 The commissioners further said that, the canal having 
 been offered to the national government, and not accepted, 
 "the state is at liberty to consult and pursue the maxims 
 of policy. These seem imperatively to demand that the 
 canal be made by her, and for her own account, as soon 
 as circumstances will permit. It is believed that a revenue 
 may be derived from it, far exceeding the interest of what 
 it will cost, and it seems just that those of our citizens 
 who have no immediate interest in the work should find 
 retribution for their share of the cost (if any) in a 
 revenue which will lessen their future contributions. 
 Whether this subject be considered with a view to com- 
 merce and finance, or on the more extensive scale of 
 policy, there would be a want of wisdom, and almost of 
 piety, not to employ for pubHc advantage those means 
 which Divine Providence has placed so completely within 
 our power." 
 
 1812, June 19. Chapter 231 authorized the commis- 
 sioners, appointed under the act of 181 1, to purchase the 
 property and interests of the Western Inland Lock Navi- 
 gation Company, acquire other property for canal pur- 
 poses, and borrow $5,000,000 on a 1 5-year credit. 
 
 1813, April 6. Chapter 144 incorporated the Seneca 
 Lock Navigation Company "for the purpose of improving 
 the navigation between the Seneca and Cayuga lakes." 
 The state comptroller was directed to subscribe 500 
 shares. The surveyor general was to be a director. Ad- 
 joining landowners might use the waters for mills or 
 hydraulic purposes. 
 
 181 5. City Hotel meeting held late in the year, in 
 New York, called by Thomas Eddy, with the approval of 
 Judge Jonas Piatt and De Witt Clinton. William Bayard 
 Vol. I. Const. Hist.— 4s. 
 
7o6 Constitutional History of New York. 
 
 was chairman, John Pintard secretary. A committee was 
 appointed to circulate a memorial, composed of Mayor 
 Clinton, Thomas Eddy, Cadwallader D. Colden, John 
 Swartwout. 
 
 1816. The memorial authorized by the City Hotel 
 meeting, and which was prepared by De Witt Clinton, 
 was presented to the legislature. This is one of the ablest 
 and most comprehensive documents ever prepared on the 
 subject of a great public improvement, and shows the 
 wide grasp and extended knowledge possessed by Mr. 
 Clinton. It is evident that this memorial made a deep 
 impression, and was a very efficient aid in creating public 
 sentiment in favor of the canal enterprise. 
 
 1816, February 2. Governor Tompkins, in his annual 
 speech to the legislature, made the following observations 
 concerning internal navigation : 
 
 "The difficulties and expenses which attended the trans- 
 portation of public stores to frontier posts, during the 
 late war, have demonstrated the necessity of a legislative 
 intervention to encourage the establishment of good roads 
 from the Hudson to the St. Lawrence, and to Lake Erie, 
 Ontario, and Champlain. ... It will rest with the 
 legislature whether the prospect of connecting the waters 
 of the Hudson with those of the western lakes and of 
 Champlain is not sufficiently important to demand the 
 appropriation of some part of the revenues of the state to 
 its accomplishment, without imposing too great a burthen 
 upon our constituents." 
 
 Discussing the subject further, Governor Tompkins 
 remarked, with rather too much hopefulness, that the 
 "first route being an object common with the states of 
 the West, we may rely on their zealous co-operation in 
 any judicious plan that can perfect the water communica- 
 tion in that direction. As it relates to connecting the 
 waters of the Hudson with those of Lake Champlain, we 
 
The Second Constitution, 1821. 707 
 
 may, with equal confidence, count on the spirited exer- 
 tions of the patriotic and enterprising state of Vermont." 
 
 1816, April 17. Chapter 237 provided for the "im- 
 provement of the internal navigation of this state." 
 Stephen Van Rensselaer, De Witt Clinton, Samuel 
 Young, Joseph Ellicott, and Myron Holley were ap- 
 pointed commissioners "to consider, devise, and adopt 
 such meastu-es as may or shall be requisite to facilitate 
 and effect the communication by means of canals and 
 locks between the navigable waters of Hudson's river and 
 Lake Erie, and the said navigable waters and Lake Cham- 
 plain." 
 
 The commissioners were authorized to apply to the 
 United States, or to any other state or territory benefited, 
 or to any person or corporation, "for cessions, grants, or 
 donations of land or money for the purpose of aiding the 
 construction" of the proposed canals. This statute re- 
 pealed the acts of 181 1 and 18 12 above cited. 
 
 181 7, April 15. Chapter 262 established a canal fund, 
 to consist of appropriations, grants, and donations made 
 for that purpose by this state, by Congress, by other 
 states, or by corporations, companies, or individuals, and 
 created commissioners of the canal fund, consisting of 
 the lieutenant governor, comptroller, attorney general, 
 surveyor general, secretary of state, and treasurer. The 
 commissioners appointed by the act of 18 16 were con- 
 tinued, under the name of canal commissioners. 
 
 The canal commissioners were authorized to "com- 
 mence making said canals" by opening communications 
 by canals and locks between the Mohawk and Seneca 
 rivers, and between Lake Champlain and the Hudson 
 river; to receive from the commissioners of the canal 
 fund, and expend, moneys necessary for such construc- 
 tion; to establish reasonable tolls, and make rules for 
 
708 Constitutional History of New York. 
 
 their collection and payment to the commissioners of the 
 canal fund. 
 
 The canal commissioners were authorized to acquire 
 the property of the Western Inland Lock Navigation Co. 
 The act imposed a tax of $. i2>^ per bushel on all salt 
 manufactured in Onondaga and in the western district, 
 also $1 for each passenger by steamboat on the Hudson 
 river, for each trip over 100 miles, and half that sum for 
 any distance less than 100 miles, and over 30 miles. The 
 proceeds of the tax on salt and steamboat passengers, and 
 also on all sales at auction, after deducting $23,500 an- 
 nually appropriated to the hospital, economical school, 
 orphan asylum society, and $10,000 appropriated an- 
 nually for the support of foreign poor in the city of New 
 York, the net proceeds from the Western Inland Lock 
 Navigation Company, the net proceeds from the canals, 
 and all grants and donations made or to be made for the 
 purpose of making said canals, were appropriated for 
 canal purposes. 
 
 1 81 7, July 4. First work on state canal begun at 
 Rome. "This important act, the commencement of the 
 Erie canal, was performed with some ceremony. Mr. 
 Clinton, the president of the Board, who had been chosen 
 governor at the previous election, in 181 7, attended, with 
 the other canal commissioners and engineers. The an- 
 niversary of our independence, since the declaration of 
 which only forty-one years had elapsed, was selected as 
 an auspicious day to begin this great work. The first 
 earth was removed from the canal path, amidst the 
 acclamations of a large concourse of people, exulting in 
 the past, enjoying the present, and anticipating the 
 future." 
 
 1818, January 27. Governor De Witt Clinton, in his 
 annual speech to the legislature, said : 
 
 "The internal trade of a country is equally essential to 
 
The Second Constitution, 1821. 709 
 
 the proq)erity of agriculture, of manufactures, and of 
 commerce ; for, embracing the interests of all, it extends 
 its enlivening influence to every important department of 
 human industry. But it can never be advantageously nor 
 extensively pursued and cultivated without easy and 
 rapid communications by water courses, roads, and 
 canals ; and it is among the first duties of government to 
 facilitate the transportation of commodities, by opening 
 and ameliorating all the channels of beneficial intercourse ; 
 for, in peace or in war, it is equally essential to our 
 cardinal interests. . . . 
 
 "I congratulate you upon the auspicious commencement 
 and successful progress of the contemplated water com- 
 mtmications between the great western and northern lakes 
 and the Atlantic ocean. Near sixty miles of the western 
 canal have been contracted for to be finished within the 
 present year, and it is probable that the whole of the 
 northern canal will be disposed of in the same manner 
 before the ensuing spring. . . . 
 
 "With respect to the debt which will be incurred in the 
 prosecution of internal improvements, there can be no 
 doubt but that light tolls on our own commodities, and 
 higher transit duties on foreign productions, will, in a 
 few years, not only accumulate a fund for its extinguish- 
 ment, but be a prolific source of revenue for the general 
 purposes of government. And this subject may, in other 
 respects, form the basis of important arrangements in 
 our system of political economy. It may be rendered a 
 powerful instrument for encouraging our own manu- 
 factures and for restraining the pernicious use of foreign 
 commodities." 
 
 1818, March 6. Chapter 23 incorporated the Chit- 
 tenengo Canal Co. for the purpose of "making a canal 
 from the Chittenengo village to the great western canal." 
 
 1 819, January 5. Governor De Witt Clinton, in his 
 
yio Constitutional History of New York. 
 
 annual speech to the legislature, reviewed at some leng^ 
 the work already accomplished in the construction of the 
 canals, recommended further legislation, and concluded 
 with the following observation : "And, when we con- 
 template the immense benefits which will be derived from 
 the consequent promotion of agriculture, manufactures, 
 and commerce ; from the acquisition of revenue ; from the 
 establishment of character ; and from the consolidation of 
 the Federal Union, we must feel ourselves impelled, by 
 the most commanding motives, to proceed in our honor- 
 able career by perfecting, with all possible expedition, this 
 inland navigation." 
 
 1819, April 7, chapter 105. The commissioners of the 
 canal fund were authorized to borrow an additional sum 
 of $600,000. The canal commissioners were authorized 
 I to extend the canals from Seneca river to Lake Erie, also 
 
 from the eastern terminus of the great western canal to 
 the Hudson river, between Fort Edward and the navig- 
 able waters of tlie Hudson river, and between the great 
 western canal and the salt works in the village of Salina. 
 
 1820, January 4. Governor De Witt Clinton, in his 
 annual speech to the legislature, after again referring to 
 the satisfactory progress of the work, said : "The efforts 
 of direct hostility to the system of internal improvements 
 will, in future, be feeble. Honest and well-disposed men, 
 who have hitherto entertained doubts, have yielded 
 them to the unparalleled success of this measure. But, 
 as there is great reason to apprehend the exertions of 
 insidious enmity, I consider it my solemn duty to warn 
 you against them. As the canal proceeds to the west, the 
 country east will, of course, be accommodated, and in 
 proportion to its progress to completion, in that ratio will 
 it be considered more easy to combine a greater mass 
 of population against its further extension. Attempts 
 have already been made to arrest its progress west of the 
 
The Second Constitution, 1821. 711 
 
 Seneca river, and it is highly probable that they will be 
 renewed when the work is finished to the Genesee." 
 
 He further rernarked that the "honor and prosperity 
 of the state imperiously demand the completion of the 
 whole of this great work." 
 
 1820, March 30. Chapter 117, amended act of 1817, 
 suspended the steamboat tax conditionally, and imposed 
 a general tax of $5,000 in lieu thereof. 
 
 1820, November 7. Governor De Witt Clinton, in 
 his annual speech, again reviewed the progress of the 
 work of construction of the canals, and urged the speedy 
 completion of the enterprise. 
 
 1821, February 9, chapter 36. Commissioners of the 
 canal fund were authorized to make an additional loan 
 of $2,000,000. The statute also authorized the legisla- 
 ture to appoint an additional canal commissioner. Canal 
 commissioners should hold office during the pleasure of 
 the legislature, and might be removed by a concurrent 
 resolution of the two houses. 
 
 1822, January 2. Governor De Witt Clinton, in his 
 annual speech to the legislature, communicated to that 
 body the condition of the canal enterprise, stating the 
 number of miles completed, and the prospect concerning 
 the remainder, and observed: "We cannot too highly 
 appreciate the importance of the artificial navigation now 
 in train of rapid and successful completion." He urged 
 the legislature to cherish "a prospective spirit, and to 
 provide in season for the exigencies of future times." 
 
 1823, January 7. Governor Joseph C. Yates, in his 
 first message to the legislature, said : 
 
 "It gives me much pleasure to state that the canal 
 system, so wisely adopted and successfully pursued in 
 the state, promises to realize the expectations of the com- 
 munity. The convenience already afforded to the inhabit- 
 ants by the facility with which the products of the coun- 
 
717 Constitutional History of New York. 
 
 try may be brought to market has exceeded the most 
 sanguine hopes of its warmest supporters." 
 
 1823, October 8. The Albany basin was opened. The 
 first canal boat, De Witt Clinton, passed through the lock 
 into the Hudson river. , 
 
 1824, January 6. Governor Yates, in his annual mes- 
 sage to the legislature, said, in part, concerning canals : 
 
 "During the last year, the Champlain canal has been 
 rendered navigable to the Hudson river, at the city of 
 Albany, and the completion of the Erie canal, the ensuing 
 season or the summer following, is rendered morally 
 certain; so that the period is not distant when we shall 
 fully experience the benefits and important advantages 
 secured to our citizens by this unexampled improvement. 
 A more propitious era, connected with the growth and 
 prosperity of our country, cannot well be imagined ; and 
 in taking a retrospective view of the enterprise and 
 patriotism of our predecessors, it is difficult to suppress 
 the most endearing emotions of respect and gratitude for 
 the memory of those with whom this vastly important 
 and useful project of connecting the western and northern 
 lakes with the waters of the Hudson first originated." 
 
 1824, April 12. De Witt Clinton was removed by the 
 legislature from the office of canal commissioner by a 
 vote of 21 to 3 in the senate, and 64 to 34 in the assembly. 
 This proceeding was taken on the last day of the session, 
 just before adjournment, without charges, and almost 
 without debate. It is evident that the people did not 
 approve the action of the legislature, for Mr. Clinton 
 was elected governor again by a very large majority 
 within seven months after his removal, and on the first 
 of January, 1825, resumed this office. It was thus 
 his happy fortune as chief magistrate, to bring to a suc- 
 cessful completion the enterprise to which he had devoted 
 his energies and talents for fifteen years. 
 
The Second Constitution, 182 1. 713 
 
 1825, January 4. Governor De Witt Clinton, on re- 
 suming the office of governor, after an interregnum of 
 two years, in his annual message to the legislature, pre- 
 sented the subject of canals, and 'said : 
 
 "The Erie canal (which is the longest in the world, 
 and which, in conjunction with the Champlain canal, and 
 the contemplated communications with Lake Ontario and 
 the minor lakes, will produce the most extensive and im- 
 portant inland navigation ever witnessed) would have 
 been finished last season, had it not been for the interven- 
 tion of unexpected impediments. ... I consider 
 these works as but the first in a series of great undertak- 
 ings. We must, however, pursue our objects with 
 prudence as well as with energy, in every stage of our 
 progress, looking for support in the wisdom and patriot- 
 ism of the people. And it is a source of high felicitation 
 to know that the debt may be speedily satisfied without 
 resorting to taxation, without discontinuing our efforts 
 for similar improvements, and without staying the dis- 
 penskig hand of government in favor of the great de- 
 partments of education, literature, and science, or the 
 cardinal interests of productive industry." 
 
 1825, October 26. The Erie canal was completed. The 
 Seneca Chief, the first canal boat for New York, left 
 Buffalo, having on board Governor De Witt Clinton, 
 Lieutenant Governor James Tallmadge, and other promiT 
 nent citizens. 
 
 1825, November 4. The Seneca Chief arrived at New 
 York, via the Erie canal and the Hudson river, a distance 
 of 513 miles. 
 
 The Convention of 1821 found a canal policy already 
 established and in practical operation, although the canals 
 were not yet completed. The promoters of the canal 
 enterprise had all along expressed the opinion that the 
 canals would pay for themselves, and that, while money 
 
714 Constitutional History of New York. 
 
 on the credit of the state had been borrowed for their 
 construction, this debt could and would be paid from the 
 tolls, without any direct taxation. 
 
 The legislature, by the acts of 1817 and 1820, above 
 cited, had provided for the payment of this debt by the 
 application of the proceeds derived from the salt springs, 
 and from licenses to auctioneers, and from the steamboat 
 passenger traffic. The effect of the provision concerning 
 canals, adopted by the Convention, was to fix in the Con- 
 stitution, beyond danger of interference or change, the 
 policy already established by the legislature. This in- 
 sured a permanent and continuing fund for the gradual 
 payment of the canal debt. The proposition to include 
 this subject in the Constitution was vigorously opposed 
 in the Convention, principally on the ground that the 
 administraticwa of this new department of public affairs 
 would necessarily be subject to some fluctuation, and that 
 it ought to be left to the discretion of the legislature 
 rather than to be fixed by any cast-iron constitutional 
 provision, which would prevent the legislature from 
 makir^ changes which might be found necessary after 
 the canals were completed; and it was further urged in 
 this connection that the legislature could be trusted to do 
 whatever was for the public interest. In the course of 
 the debate a sectional feeling between the eastern and 
 western parts of the state was manifested, and the whole 
 subject provoked very animated discussion. A large 
 majority of the Convention thought that the faith of the 
 state by its Constitution should be pledged for the mainte- 
 nance of the canal policy already established, and that 
 there should be no opportunity for the diversion to other 
 purposes of funds already devoted to the payment of the 
 canal debt, and a consequent resort to general taxation. 
 The Convention evidently felt assured of the success of 
 the canal enterprise to which the state had committed 
 
The Second Constitution, 1821. 715 
 
 itself, though it was not completed until four years after 
 the Convention ; and the debates evince a breadth of view 
 of public affairs, and the confidence in the future which 
 was a marked characteristic of the statesmen of that 
 period. 
 
 The subject of canals occupies only a small space in the 
 Constitution, but it embraced the following propositions : 
 
 Canal tolls at a rate not less than that already fixed by 
 the canal commissioners were established and continued. 
 
 The canal tolls, the duties on salt, auction duties, and 
 the revenue raised in lieu of the steamboat passenger 
 tax, were inviolably appropriated for canal purposes, 
 without change of rate or diversion until all expenses and 
 debts incident to the construction of the canals were fully 
 paid. 
 
 The legislature was prohibited from selling or dispos- 
 ing of the salt springs, or salt lands, or the canals. 
 
 Bill of Rights. 
 
 Sir William Blackstone in his Commentaries (i, 124) 
 says that the "principal aim of society, and the primary 
 end of human laws, are to maintain, regulate, and to 
 protect the absolute rights of individuals; namely, the 
 right of personal liberty, the right of personal security, 
 the right of private property ;" to which Chancellor Kent 
 added, "the right to the free exercise and enjoyment of 
 religious profession and worship." 
 
 It has been deemed essential that these rights, and 
 others logically deducible from them, be stated in con- 
 crete written form in a constitution, statute, or other in- 
 strument, so that all the people entitled to their enjoy- 
 ment may claim the privileges conferred by them when- 
 ever their liberties are invaded. 
 
 Blackstone further says that these rights are "private 
 immunities," which include "either the residuum of natural 
 
7i6 Constitutional History of New York. 
 
 . liberty which is not required by the laws of society to be 
 sacrificed to public convenience; or else those civil privi- 
 leges which society hath engaged to provide in lieu of 
 the natural liberties so given up by individuals;" and that 
 the enjoyment of these rights has sometimes been subject 
 to "serious fluctuation," sometimes "depressed," and at 
 other times even "too luxuriant," but that the "vigor of 
 our free Constitution has always delivered the nation 
 from these embarrassments," and the fundamental 
 articles have been asserted as often as they were thought 
 to be in danger. 
 
 These fundamental principles of personal liberty are 
 stated with great force and vigor in the 39th and 40th 
 articles of Magna Charta (1215), where it is declared 
 that, 
 
 "No freeman shall be seized, or imprisoned, or dis- 
 possessed, or outlawed, or in any way destroyed ; nor will 
 we condeaim him, nor will we commit him to prison, ex- 
 cepting by the legal judgment of his peers, or by the 
 laws of the land." 
 
 "To none will we sell, to none will we deny, to none 
 will we delay, right or justice." 
 
 The principles contained in the 39th article were re- 
 asserted by an act of Parliament, passed in the 28th year 
 of the reign of Edward III. (1354), which provided that 
 "no man, of what estate or condition that he be, shall 
 be put out of land or tenement, nor taken, nor imprisoned, 
 nor disinherited, nor put to death, without being brought 
 to answer by due process of law." 
 
 Sir James Mackintosh, commenting on the 39th and 
 40th articles of Magna Charta, says they contain "the 
 Habeas Corpus and the Trial by Jury ; the most effectual 
 securities against oppression which the wisdc«i of man 
 has hitherto been able to devise." 
 
 Hallam (Middle Ages, vol. 2, pp. 448-450) says of 
 
The Second Constitution, 1821. yiy 
 
 the 39th and 40th articles of Magna Charta : "But the 
 essential clauses of Magna Charta are those which pro- 
 tect the personal liberty and property of all freemen, by 
 giving security from arbitrary imprisonment and arbi- 
 trary spoliation." Hallam further says that "it is obvious 
 that these words [of the 39th and 40th articles] inter- 
 preted by any honest court of law, convey an ample secur- 
 ity for the two main rights of civil society. From the 
 era, therefore, of King John's charter, it must have been 
 a clear principle of our Constitution, that no man can be 
 detained in prison without trial. Whether courts of 
 justice framed the writ of habeas corpus in conformity 
 to the spirit of this clause, or found it already in their 
 register, it became from that era, the right of every sub- 
 ject to demand it. . . . That writ, rendered more 
 actively remedial by the statute of Car. II., but founded 
 upon the broad basis of Magna Charta, is the principal 
 bulwark of English liberty." 
 
 Charles I., soon after his accession, made a forced loan, 
 which many people refused to pay. Some of the common 
 people who refused were pressed into the navy ; some of 
 the gentry were imprisoned. Five of these, Sir Thomas 
 Darnel and others, sued out their writs of habeas corpus 
 in the King's Bench, to which the warden of the Fleet 
 returned that they were detained under a warrant from 
 the Privy Council by special command of the King. This 
 raised a question of the power of the Crown to imprison 
 without specific charges. This question was of vital im- 
 portance to the subject, and it was contended with great 
 ability, by eminent counsel, that a British subject could 
 not be imprisoned at the mere pleasure of the King. The 
 court, after long argument and much consideration, sus- 
 tained the Crown, and remanded the prisoners to custody. 
 This proceeding was in 1627, and it gave rise to the 
 famous Petition of Right, 1628. 
 
7i8 Constitutional History of New York. 
 
 This petition was the next most important step in the 
 development of the rights of Enghsh subjects. It was 
 wrung from Charles I. by the third Parliament, in 1628. 
 Macaulay calls this "The Second Great Charter of the 
 Liberties of England." This petition recited various 
 statutes and charters limiting the royal prerogative, and 
 granting popular rights, among them Magna Charta and 
 the Statute of 28 Edward III, above cited, and various 
 infringements on these charters and privileges which had 
 recently been either directed or permitted by the King, 
 including : 
 
 The compulsory loan of money for royal purposes, and 
 requiring persons who refused to make such loan to take 
 an unlawful oath, and become bound to make appearance 
 to give utterance before the Privy Council, and in other 
 places. 
 
 The unlawful levying of taxes. 
 
 The imprisonment of several persons, contrary to 
 Magna Charta and the Statute of Edward III., who, on 
 a writ of habeas corpus, were found to be detained with- 
 out any specific charge, but simply at the royal pleasure. 
 
 Quartering soldiers in time of peace, without the con- 
 sent of the people. 
 
 Unlawfully creating extraordinary commissions for 
 the trial and punishment of offenders by the use of mar- 
 tial law in time of peace, instead of resorting to the 
 ordinary ci'iminal procedure. 
 
 The petition included the following demands : 
 
 1. That "no man hereafter be compelled to make, or 
 yield, any gift, loan, benevolence, tax, or such like charge, 
 without common consent by act of Parliament." 
 
 2. "That none be called to make answer, or take such 
 oath, or to give attendance, or be confined, or otherwise 
 molested or disquieted concerning the same or for re- 
 fusal thereof." 
 
The Second Constitution, 1821. yiy 
 
 3. That "no freeman, in any such manner as is before 
 mentioned, be imprisoned or detained." 
 
 4. That the soldiers and mariners may be removed, so 
 that the people may not be burdened. 
 
 5. That the commissions for proceeding by martial law 
 be revoked and annulled, and that no such commissions 
 be again issued. 
 
 After some delay Charles gave a reluctant assent to 
 this petition, and Macaulay, describing the event, says 
 that "the day on which the royal sanction was solemnly 
 given to this great act was a day of joy and hope. The 
 Commons, who crowded the Bar of the House of Lords, 
 broke forth into loud acclamations as soon as the clerk 
 had pronounced the ancient form of words by which our 
 Princes have, during many ages, signified their assent to 
 the wishes of the Estates of the Realm. These acclama- 
 tions were re-echoed by the voice of the capital and of 
 the nation." 
 
 But the end was not yet; the struggle between royal 
 prerogative and parliamentary government in the name 
 of the people was soon renewed. Scarcely three weeks 
 elapsed after Charles gave his assent to the great "Peti- 
 tion" when he began plotting to subvert or evade it. His 
 encroachments on popular liberty finally became unen- 
 durable, and he was driven from the throne to the block. 
 
 The "Protectorate" of Cromwell was, in many respects, 
 the beginning of a new era in English liberty, but after 
 a short period this Protectorate was succeeded by another 
 monarchy, and by a sovereign who forgot or ignored the 
 obligations which the Crown owed to the people. But 
 the people did not forget. 
 
 The decision of the court in Darnel's Case, denying the 
 relief sought by the writ of habeas corpus, and annoim- 
 cing the doctrine that the subject could be imprisoned at 
 the pleasure of the King, without assigning any specific 
 
720 Constitutional History of New York. 
 
 reason, caused an alarm which did not readily abate. 
 This decision meant that the will of the King "might be 
 deemed the law of the land" within the meaning of 
 Magna Charta. This doctrine could not long prevail. 
 Several efforts were made within the next few years to 
 procure the passage of a law defining more clearly the 
 remedies of the subject on a writ of habeas corpus. These 
 efforts finally resulted in the enactment of chap. 2, 31 Car. 
 II., on the 26th of May, 1679, entitled "An Act for the 
 Better Securing the Liberty of the Subject, and for Pre- 
 venticm of Imprisonment Beyond the Seas." This is the 
 famous habeas corpus act. It did not state any new 
 principles, but was intended to provide ample and strin- 
 gent remedies. It stands as one of the landmarks of 
 English constitutional history, and has been the basis of 
 modern legislation on the same subject. 
 
 Magna Charta, the Statute of Edward, the Petition of 
 Right, and the habeas corpus act had traveled across the 
 sea, and the colonists in New York, at their first Colonial 
 Assembly, held in October, 1683, six years before the 
 English Bill of Rights, passed "The Charter of Liberties 
 and Privileges," in which they asserted for New York 
 the rights conferred by these great instruments, so far 
 as they were applicable to colonial conditions. 
 
 In addition to various provisions concerning local gov- 
 ernment the charter contained the following statement of 
 fundamental principles : 
 
 1. "THAT Every ffreeholder within this province, and 
 ffreemen in any Corporacon Shall have his free Choise 
 and Vote in the Electing of the Representatives without 
 any manner of constraint or Imposicon. And that in all 
 Eleccons the Majority of Voices shall carry itt and by 
 freeholders is understood every one who is Soe under- 
 stood according to the Lawes of England." 
 
 2. "THAT Noe freeman shall be taken and imprisoned 
 
The Second Constitution, 1821. 721 
 
 or be disseized of his ffreehold or Libertye or ffree Cus- 
 tomes or be outlawed or Exiled or any other wayes de- 
 stroyed nor shall be passed upon adjudged or condemned 
 But by the Lawful! Judgment of his peers and by the 
 Law of this province. Justice nor Right shall be neither 
 sold denyed or deferred to any man within this province." 
 Magna Charta, 39. 
 
 3. "THAT Noe aid Tax, Tallage, Assessment, Cus- 
 tome, Loane, Benevolence or Imposicon whatsoever shall 
 be layed assessed imposed or levyed on any of his 
 Majestyes Subjects within this province or Their Estates 
 upon any manner of Colour or pretence but by the act 
 and Consent of the Governour Councell and Representa- 
 tives of the people in Generall Assembly mett and As- 
 sembled." Petition of Right. 
 
 4. "THAT Noe man of what Estate or Condicon so- 
 ever shall be putt out of his lands or Tenements, nor 
 taken, nor imprisoned, nor disherited, nor banished nor 
 any wayes destroyed without being brought to Answere 
 by due Course of Law." 28 Ed. III., chap. 2. 
 
 5. "THAT A Ffreeman Shall not be amerced for a 
 small fault, but after the manner of his fault and for a 
 great fault after the Greatnesse thereof Saveing to him 
 his freehold. And a husbandman saveing to him his 
 Wainage and a merchant likewise saveing to him his 
 merchandize And none of the said Amerciaments shall be 
 assessed but by the oath of twelve honest and Lawful! 
 men of the Vicinage provided the faults and misdemean- 
 ors be not in Contempt of Courts of Judicature. 
 
 "ALL Tryalls shall be by the verdict of twelve men, 
 and as near as may be peers or Equalls And of the neigh- 
 bourhood and in the County Shire or Division where the 
 fact Shall arise or grow Whether the Same be by Indict- 
 ment Infermacon Declaracon or otherwise against the 
 person Offender or Defendant." Magna Charta. 
 Vol. I. Const. Hist. — 4,6. 
 
722 Constitutional History of New York. 
 
 6. "THAT In all Cases Capitall or Criminall there 
 shall be a grand Inquest who shall first present the offence 
 and then twelve men of the neighbourhood to try the 
 offender who after his plea to the Indictment shall be 
 allowed his reasonable Challenges." 
 
 7. "THAT In all cases whatsoever Bayle by sufficient 
 Suretyes Shall be allowed and taken unlesse for treason 
 or felony plainly and specially Expressed and menconed 
 in the Warrant of Committment provided Alwayes that 
 nothing herein contained shall Extend to discharge out 
 of prison upon bayle any person taken in Execucon for 
 debts or otherwise legally sentenced by the Judgment of 
 any of the Courts of Record within the province. 
 
 8. "THAT Noe Comissions for proceeding by Mar- 
 shall Law against any of his Majestyes Subjects within 
 this province shall issue forth to any person or persons 
 whatsoever least by Colour of them any of his Majestyes 
 Subjects bee destroyed or putt to death Except all such 
 officers persons and Soldiers in pay throughout the Gov- 
 ernment." Petition of Right, 1628. 
 
 9. "THAT From hence forward Noe lands within this 
 province shall be esteemed or accounted a Chattle or per- 
 sonall Estate but an Estate of Inheritance according to 
 the Custome and practise of his Majestyes Realme of 
 England." 
 
 ID. "THAT All Lands and Heritages within this prov- 
 ince and Dependencyes shall be free from all fines and 
 Lycences upon Alienacons, and from all Herriotts Wards 
 Shipps Liveryes primer Seizens yeare day and Wast Es- 
 cheats and forfeitures upon the death of parents and 
 Ancestors naturall casuall or Judiciall, and that forever ; 
 Cases of High treason only excepted. 
 
 II. "THAT Noe person or persons which prof esse 
 ffaith in God by Jesus Christ Shall at any time be any 
 wayes molested punished disquieted or called in Question 
 
The Second Constitution, 1821. 723 
 
 for any Difference in opinion or Matter of Religious 
 Concernment, who doe not actually disturb the Civill 
 peace of the province, But that all and Every such person 
 or persons may from time to time and at all times freely 
 have and fully enjoy his or their Judgments or Con- 
 sciencyes in matters of Religion throughout all the prov- 
 ince, they behaveing themselves peaceably and quietly 
 and not useing this Liberty to Lycentiousnesse nor to 
 the Civill Injury or outward disturbance of others." 
 
 The English people endured the reign of the second 
 Charles with great patience; but this patience soon be- 
 came exhausted when his successor, James II., began his 
 desperate career of royal usurpation. 
 
 This part of English history is not especially pertinent 
 here, and is mentioned only for the purpose of recalling 
 the well-known fact that the struggle between royal 
 prerogative and popular rights continued with varying 
 results through sixty years, ending in the overthrow and 
 abdication of James, in 1688, and the transfer of the 
 crown to William and' Mary. But the English people did 
 not mean to be deceived again, and, when the crown was 
 offered to William and Mary, they were required to give 
 their assent to the Declaration of Right. 
 
 This Declaration, which became the English Bill of 
 Rights, was enacted as chapter 2, passed at the second 
 session of Parliament, 1689. This Bill of Rights was one 
 of the immediate effects of the Revolution which resulted 
 in the abdication of James II., who usurped and attempted 
 to overthrow some of the most important personal rights 
 and privileges secured by Magna Charta, and by the act 
 of 28 Edward III. 
 
 This Bill of Rights declared : 
 
 "i. That the pretended power of suspending laws, or 
 the execution of laws by regal authority, without consent 
 of Parliament, is illegal. 
 
724 Constitutional History of New York. 
 
 "2. That the pretended power of dispensing with laws, 
 or the execution of laws by regal authority, as it hath 
 been assumed and exercised of late, is illegal. 
 
 "3. That the commission for erecting the late Court 
 of Commissioners for ecclesiastical causes, and all other 
 commissions and courts of like nature, are illegal and 
 pernicious. 
 
 "4. That levying money for or to the use of the Crown, 
 by pretense of prerogative, without grant of Parliament, 
 for longer time or in other manner than the same is or 
 shall be granted, is illegal. 
 
 "5. That it is the right of the subjects to petition the 
 King, and all commitments and prosecutions for such 
 petitioning are illegal. 
 
 "6. That the raising or keeping a standing army with- 
 in the kingdom in time of peace, unless it be with consent 
 of Parliament, is against law. 
 
 "7. That the subjects which are Protestants may have 
 arms for their defense suitable to their conditions, and as 
 allowed by law. 
 
 "8. That election of members of Parliament ought to 
 be free. 
 
 "9. That the freedom of speech, and debates or pro- 
 ceedings in Parliament, ought not to be impeached or 
 questioned in any court or place out of Parliament. 
 
 "10. That excessive bail ought not to be required, nor 
 excessive fines imposed, nor cruel and unusual punish- 
 ments inflicted. 
 
 "11. That jurors ought to be duly impaneled and re- 
 turned, and jurors which pass upon men in trials for 
 high treason ought to be freeholders. 
 
 "12. That all grants and promises of fines and for- 
 feitures of particular persons before conviction are illegal 
 and void. 
 
 "13. And that for redress of all grievances, and for 
 
The Second Constitution, 1821. 725 
 
 the amending, strengthening, and preserving of the laws. 
 Parliament ought to be held frequently. 
 
 "And they do claim, demand, and insist upon all and 
 singular the premises, as their undoubted rights and 
 liberties." 
 
 The statute declares that all and singular the rightg 
 and liberties asserted and claimed by the Declaration are 
 and shall be esteemed, allowed, adjudged, deemed, and 
 taken to be "the true, ancient, and indubitable rights and 
 liberties of the people of this kingdom." Macaulay 
 describes the Declaration as a "great contract between 
 the governors and the governed," and the "title deed by 
 which the King held his throne, and the people their 
 liberties." 
 
 The privileges affirmed and granted by the Bill of 
 Rights, and also all other liberties possessed and enjoyed 
 by the English people, were solemnly ratified and con- 
 firmed by the Act of Settlement, 12 and 13 Wm. III. 
 (1700), chap. 2, which closes with the following para- 
 graph : 
 
 "And whereas the Laws of England are the birthright 
 of the people thereof, and all the Kings and Queens, who 
 shall ascend the Throne of this realm, ought to admin- 
 ister the Government of the same according to the said 
 laws, and all their officers and ministers ought to serve 
 them respectively according to the same : The said Lords 
 Spiritual and Temporal, and Commons, do therefore 
 further humbly pray, That all the Laws and Statutes of 
 this realm for securing the established religion, and the 
 rights and liberties of the people thereof, and all other 
 Laws and Statutes of the same now in force, may be 
 ratified and confirmed, and the same are by his Majesty! 
 by and with the advice and consent of the Lords Spiritual 
 and Temporal, and Commons, and by the authority of the 
 same, ratified and confirmed accordingly." 
 
726 Constitutional History of New York. 
 
 The transfer of the crown from James II. to William 
 and Mary was a real revolution, and the instrument by 
 which that transfer was effected was a revolutionary in- 
 strument. It established a new government in a new 
 royal line, with limitations and restrictions on the royal 
 prerogative, and an assertion of popular rights which 
 have become permanent and irrevocable under the Eng- 
 lish Constitution. It is noteworthy here, also, that the 
 crown was tendered to William and Mary by a convention 
 of representatives of the people, chosen in the manner 
 required for the election of members of Parliament, 
 not by virtue of the usual royal writ, but by general con- 
 sent, and as a voluntary act, in response to William's 
 request for the selection of representatives with authority 
 from the people to re-establish the government. This 
 convention was not originally a Parliament, but it turned 
 itself into a Parliament, and became the law-making 
 power of the English nation. This body was in effect a 
 constitutional convention; it established a new govern- 
 ment, and proclaimed certain fundamental principles on 
 which that government should be administered. 
 
 There is a striking similarity between this convention 
 and the New York Provincial Convention of 1776. 
 We have already noted in the chapter on the first Con- 
 stitution that the first constitutional convention not only 
 framed and put in operation a new state government, but 
 that it also assumed and exercised legislative powers. In 
 doing this the New York patriots, perhaps unconsciously, 
 imitated their English predecessors who accomplished the 
 revolution of 1688. 
 
 The English Bill of Rights, contained in the statute of 
 William and Mary, became not only the property of Eng- 
 lishmen in England, but also the property of the inhabit- 
 ants of the English colonies in America; and this statute 
 was in full force in the colony of New York at the begin- 
 
The Second Constitution, 1821. 727 
 
 ning of the Revolution. But many of its provisions were 
 not applicable to the new conditions incident to the sepa- 
 ration of the colonies from Great Britain, and the estab- 
 lishment of a new form of government. It was quite 
 natural, therefore, that the Provincial Convention should 
 wish to provide for a Bill of Rights in the first Constitu- 
 tion, stating these rights from the American point of 
 view. 
 
 The resolution of the Provincial Convention adopted 
 on the 1st of August, 1776, providing for a committee to 
 "report a plan for instituting and framing a form of gov- 
 ernment," also directed the committee to prepare a Bill of 
 Rights, "ascertaining and declaring the essential rights 
 and privileges of the good people of this state, as a foun- 
 dation for such form of government." A Bill of Rights 
 was not reported by the committee as a part of the Con- 
 stitution, nor was such a declaration of principles adopted 
 by the convention. The committee did, however, include 
 in the proposed Constitution a few propositions which 
 fairly belong in a Bill of Rights; namely, the provision 
 that the people are the source of all authority ; the provi- 
 sion against disfranchisement, or depriving any citizen 
 of his rights or privileges, "unless by the law of the land, 
 or the judgment of his peers ;" religious toleration, pre- 
 serving trial by jury, and prohibiting acts of attainder. 
 But it should be noted that the Constitution, by article 35, 
 continued in force, subject to alteration by the legisla- 
 ture, "such parts of the common law of England, statute 
 law of England and Great Britain, and the acts of the leg- 
 islature of the colony New York, as together did form the 
 law of the said colony on the 19th day of April, 1775." 
 This actually continued the English Bill of Rights as a 
 part of the law of New York. 
 
 Many of the early state Constitutions contained elab- 
 orate Bills of Rights, based largely on the provisions of 
 
728 Constitutional History of New York. 
 
 Magna Charta, and on subsequent charters and statutes 
 which were the outgrowth and development of the princi- 
 ples stated in that great document. 
 
 The legislature of New York, on the 26th of January, 
 1787, passed (chap, i) "An Act Concerning the Rights 
 of the Citizens of this State." This has since been known 
 as the Bill of Rights. It was continued in the revisions of 
 1 80 1, 18 13, and also, with some modifications, in the re- 
 vised statutes of 1828, by which the original act of 1787 
 was repealed. The Bill of Rights contained in the revised 
 statutes is still a part of the law of New York, and many 
 of its provisions are also in the Constitution. The Bill of 
 Rights in its original form continued in force more than 
 forty years, and was deemed of great value and signifi- 
 cance by the statesmen of that period. Several of its most 
 important features were included in the Constitution of 
 1821, and have since remained a part of our fundamental 
 law. Their value as checks on the exercise of power by 
 the majority will be noted when we take up the considera- 
 tion of judicial decisions construing various statutes 
 which have been declared obnoxious to the provisions of 
 the Constitution which seek to secure the individual 
 rights and privileges of the citizen. 
 
 The Bill of Rights of 1787 is so important historically 
 and as a source of constitutional limitations that it de- 
 serves to be quoted here in full. This statute contained 
 the following statement of principles : 
 
 First. Tliat no authority shall, on any pretense what- 
 soever, be exercised over the citizens of this state but such 
 as is or shall be derived from and granted by the people 
 of this state. 
 
 (This is substantially a repetition of article i of the 
 Constitution of 1777.) 
 
 Second. That no citizen of this state shall be taken or 
 imprisoned or be disseised of his or her freehold or lib- 
 
The Second Constitution, 1821. 729 
 
 erties or free customs, or outlawed or exiled or con- 
 demned or otherwise destroyed, but by lawful judgment 
 of his or her peers, or by due process of law. 
 
 (This is based on the 39th article of Magna Charta, 
 with some modification not affecting the principle of the 
 original. See also 28 Edward III, chap. 3.) 
 
 Third. That no citizen of this state shall be taken or 
 imprisoned for any offense upon petition or suggestion 
 unless it be by indictment or presentment of good and 
 lawful men of the same neighborhood where such deeds 
 be done, in due manner or by due process of law. 
 
 (This paragraph and the next seem to be based on the 
 provision in the English "Petition of Right" against the 
 extraordinary commissions for the trial of offenses in- 
 stead of resorting to the usual judicial tribunals.) 
 
 Fourth. That no person shall be put to answer without 
 presentment before justices, or matter of record, or due 
 process of law according to the law of the land, and if 
 any thing be done contrary it shall be void in law and 
 holden for error. 
 
 (See note to paragraph 3.) 
 
 Fifth. That no person, of what estate or condition so- 
 ever, shall be taken or imprisoned, or disinherited or put 
 to death without being brought to answer by due process 
 of law ; and that no person shall be put out of his or her 
 franchise or freehold, or lose his or her life or limb, or 
 goods and chattels, unless he or she be duly brought to 
 answer and be forejudged of the same by due course of 
 law ; and if anything be done contrary to the same it shall 
 be void in law, and holden for none. 
 
 (Based on Magna Charta, chap. 39, and on 28 Edward 
 III., chap. 3.) 
 
 Sixth. That neither justice nor right shall be sold to 
 any person, nor denied, nor deferred ; and that writs and 
 process shall be granted freely and without delay to all 
 
730 Constitutional History of New York. 
 
 persons requiring the same, and nothing from henceforth 
 shall be paid or taken for any writ or process but the ac- 
 customed fee for writing and for the seal of the same writ 
 or process ; and all fines, duties, and impositions whatso- 
 ever heretofore taken or demanded under what name or 
 description soever, for or upon granting any writs, in- 
 quests, commissions, or process to suitors in their causes, 
 shall be and hereby are abolished. 
 
 (Based on Magna Charta, article 40, with modifica- 
 tions, but without affecting the pi'inciple. ) 
 
 Seventh. That no citizens of this state shall be fined or 
 amerced without reasonable cause, and such fine or amer- 
 ciament shall always be according to the quantity of his or 
 her trespass or offense and saving to him or her, his or her 
 contenement; That is to say, every freeholder saving his 
 freehold, a merchant saving his merchandize, and a me- 
 chanic saving the implements of his trade. 
 
 (Based on Magna Charta, articles 20, 21, and 22.) 
 
 Eighth. That excessive bail ought not to be required, 
 nor excessive fines imposed, nor cruel and unusual punish- 
 ments inflicted. 
 
 (English Bill of Rights, 1689, article 10, without 
 change. ) 
 
 Ninth. That all elections shall be free, and that no per- 
 son, by force of arms nor by malice or menacing or other- 
 wise, presume to disturb or hinder any citizen of this 
 state to make free election, upon pain of fine and impris- 
 onment and treble damages to the party grieved. 
 
 (An extension of article 8, English Bill of Rights, pro- 
 viding that election of members of Parliament ought to 
 be free.) 
 
 Tenth. That it is the right of the citizens of this state 
 to petition the person administering the government of 
 this state for the time being, or either house of the legis- 
 
The Second Constitution, 182 1. 731 
 
 lature, and all commitments and prosecutions for such pe- 
 titioning are illegal. 
 
 (English Bill of Rights, article 5, extended so as to 
 permit petitions to the legislature. ) 
 
 Eleventh. That the freedom of speech and debates and 
 proceedings in the senate and assembly shall not be im- 
 peached or questioned in any court or place out of the 
 senate and assembly. 
 
 (English Bill of Rights, article 9, substituting the sen- 
 ate and assembly for Parliament) 
 
 Twelfth. That no tax, duty, aid, or imposition whatso- 
 ever shall be taken or levied within this state without the 
 grant and assent of the people of this state, by their rep- 
 resentatives in senate and assembly, and that no citizen of 
 this state shall be, by any means, compelled to contribute 
 to any gift, loan, tax, or other like charge not set, laid, or 
 imposed by the legislature of this state ; and further, that 
 no citizen of this state shall be constrained to arm himself 
 or to go out of this state or find soldiers or men of arms, 
 either horsemen or footmen, if it be not by assent and 
 grant of the people of this state, by their representatives 
 in senate and assembly. 
 
 (Based on the Petition of Right, par. i, and also the 
 Bill of Rights, article 4.) 
 
 Thirteenth. That by the laws and customs of this state 
 the citizens and inhabitants thereof cannot be compelled 
 against their wills to receive soldiers into their houses 
 and to sojourn them there, and therefore no officer, mili- 
 tary or civil, nor any other person whatsoever shall, from 
 henceforth, presume to place, quarter, or billet any soldier 
 or soldiers upon any citizen or inhabitant of this state of 
 any degree or profession whatever without his or her con- 
 sent, and that it shall and may be lawful for every such 
 citizen and inhabitant to refuse to sojourn or quarter any 
 
732 Constitutional History of New York. 
 
 soldier or soldiers, notwithstanding any command, order, 
 warrant, or billeting whatever. 
 
 (Based on the Petition of Right.) 
 
 The proposition was made in the Federal Constitu- 
 tional Convention of 1787 to include in the Constitution 
 a Bill of Rights, but the proposition was defeated byi a tie 
 vote. Many of the states, while acting on the ratification 
 of the Federal Constitution of 1787, proposed numerous 
 amendments to that instrument, many of which were in- 
 tended to declare certain fundamental principles com- 
 monly included in a Bill of Rights, and an examination of 
 the first ten amendments to the Federal Constitution will 
 show the importance of these principles. 
 
 One of the statesmen of that day (Mr. Samuel Liver- 
 more, of New Hampshire) is reported to have said that 
 these amendments were "of no more value than a pinch 
 of snuff, since they went to secure rights never in dan- 
 ger." But more than a century of legislation and judi- 
 cial construction since the adoption of the amendments 
 demonstrate the wisdom of the statesmen who insisted on 
 incorporating these principles in the Constitution. 
 
 The first ten amendments to the Federal Constitution 
 were recommended to the states by Congress in Septem- 
 ber, 1789, at its first session under the Constitution. 
 
 These amendments to the Constitution of the United 
 States assert the following principles relating to the rights 
 and privileges of the citizen : 
 
 1. Freedom of religidus profession and worship. 
 
 2. Freedom of speech and of the press. 
 
 3. Right of petition. 
 
 4. Right of the people to keep and bear arms. 
 
 5. Soldiers not to be quartered in time of peace without 
 consent of the owner of the house, "nor in time of war, 
 but in a manner to be prescribed by law." 
 
The Second Constitution, 1821. 733 
 
 6. Guaranteeing immunity from unreasonable searches 
 and seizures. 
 
 7. Indictment necessary in prosecutions for capital or 
 otherwise infamous crimes. 
 
 8. No person shall be deprived of life, liberty, or prop- 
 erty without due process of law. 
 
 9. Private property shall not be taken for public use 
 without compensation. 
 
 10. Trial by jury is preserved in civil cases where the 
 amount in controversy exceeds $20. 
 
 11. A person accused of crime — 
 
 a. Shall not be compelled to be a witness against him- 
 self. 
 
 h. Is entitled to a speedy and public trial by an impar- 
 tial jury of the state and district wherein the crime shall 
 have been committed, which district shall have been pre- 
 viously ascertained by law. 
 
 c. Must be informed of the nature and cause of the 
 accusation. 
 
 d. Must be confronted with the witnesses against him. 
 
 e. Must have compulsory process for obtaining wit- 
 nesses in his favor. 
 
 /. Is entitled to the assistance of counsel for his de- 
 fense. 
 
 12. Excessive bail shall not be required. 
 
 13. Excessive fines shall not be imposed. 
 
 14. Cruel and unusual punishments shall not be in- 
 flicted. 
 
 15. No person shall "be subject, for the same offense, 
 to be twice put in jeopardy of life or limb." 
 
 16. Rights not enumerated, preserved. 
 
 This brings us to the Constitution of 182 1. The fram- 
 ers of this instrument sought to include in it all the provi- 
 sions deemed necessary, which were found in the English 
 and New York Bills of Rights, and in the first ten amend- 
 
734 Constitutional History of New York. 
 
 ments to the Federal Constitution. The Constitution of 
 1 82 1 appears in full in another part of this work. 
 
 A synopsis only of the Bill of Rights is given here, for 
 the purpose of showing the subjects included, and their 
 continuance or evolution from earlier Bills of Rights. 
 These provisions may be stated or summarized as fol- 
 lows : 
 
 1. Citizens not to be disfranchised. 
 
 2. Trial by jury preserved. 
 
 3. Creation of new courts limited. 
 
 4. Religious toleration. 
 
 5. Writ of habeas corpus. 
 
 6. Indictment necessary in prosecutions for capital or 
 otherwise infamous crimes. 
 
 7. Accused may have counsel. 
 
 8. No person to be twice put in jeopardy. 
 
 9. Accused person not compelled to be a witness 
 against himself. 
 
 10. No person to be deprived of life, liberty, or prop- 
 erty without due process of law. 
 
 11. Private property shall not be taken for public use 
 without just compensation. 
 
 12. Freedom of speech and of the press. 
 
 13. Truth may be given in evidence in libel cases. 
 
 NEW YORK BILL OF RIGHTS, IQCS- 
 
 The Bill of Rights has become somewhat disconnected 
 by the manner in which its various parts have been 
 adopted, some parts being in the Constitution, others in 
 the statutes, and several in both. It seems desirable to 
 state here, in a connected form, the various provisions 
 belonging in the Bill of Rights, whether in the Constitu- 
 tion or in statutes. In this arrangement the Constitution 
 is given the preference, and similar statutory provisions 
 are not repeated. This arrangement also includes pro- 
 
The Second Constitution, 1821. 735 
 
 visions not usually stated in a formal Bill of Rights, but 
 which, under our Constitution, confer peculiar privileges 
 either on the whole people or specified classes of people, — 
 such as the right of suffrage, which is fundamental in a 
 republican government; the common-school provision, 
 which gives the children of the state a right to the benefits 
 of a system of common schools ; the civil service provision, 
 which confers on certain classes of citizens superior rights 
 in relation to positions in the public service ; and the pro- 
 vision relative to damages for negligence causing death, 
 which prohibits the legislature from limiting the amount 
 which may be recovered in such cases. 
 
 1. All authority derived from the people. — No author- 
 ity can, on any pretense whatsoever, be exercised over the 
 citizens of this state, but such as is or shall be derived 
 from and granted by the people of this state. 
 
 [Const. 1777, art i ; act 1787, § I ; Rev. Stat. H i, chap. 4, § i.] 
 
 2. Persons not to he disfranchised. — No member of 
 this state shall be disfranchised or deprived of any of the 
 rights or privileges secured to any citizen thereof, unless 
 by the law of the land, or the judgment of his peers. 
 
 [Magna Charta, chap. 39; Const. 1777, art. 13; N. Y. act 1787, 
 11 2 ; Const. 1821, art. 7, § i ; Const. 1846, art. I, § 1 ; Const. 1894, 
 art. I, § I.] 
 
 J. Due process of law. — No person shall be deprived of 
 life, liberty, or property without due process of law. 
 
 [U. S. Const, sth Amend. ; N. Y. Const. 1821, art. 7, ^ 7; Const. 
 1846, art. I, § 6; Const. 1894, art. i, i 6.] 
 
 4. Right of suffrage. — Every male citizen of the age 
 of twenty-one years, who shall have been a citizen for 
 ninety days, and an inhabitant of this state one year next 
 preceding an election, and for the last four months a resi- 
 
736 Constitutional History of New York. 
 
 dent of the county, and for the last thirty days a resident 
 of the election district in which he may offer his vote, 
 shall be entitled to vote at such election in the election dis- 
 trict of which he shall at the time be a resident, and not 
 elsewhere, for all officers that now are or hereafter may be 
 elective by the people, and upon all questions which may 
 be submitted to the vote of the people, provided that in 
 time of war no elector in the actual military service of the 
 state, or of the United States, in the Army or Navy 
 thereof, shall be deprived of his vote by reason of his 
 absence from such election district; and the legislature 
 shall have power to provide the manner in which, and 
 the time and place at which, such absent electors may 
 vote, and for the return and canvass of their votes in the 
 election districts in which they respectively reside. 
 
 [N. Y. Const. 1777, art. 7; 1821, art. 2, § i, as amended 1826; 
 1846, art. 2, § I, as amended 1864 and 1874; 1894, art. 2, § i.] 
 
 5. Religious toleration. — The free exercise and enjoy- 
 ment of religious profession and worship, without dis- 
 crimination or preference, shall forever be allowed in this 
 state to all mankind ; and no person shall be rendered in- 
 competent to be a witness on account of his opinions on 
 matters of religious belief; but the liberty of conscience 
 hereby secured shall not be so construed as to excuse acts 
 of licentiousness, or justify practices inconsistent with the 
 peace or safety of this state. 
 
 [Const. 1777, art. 38; U. S. Const, ist Amend.; N. Y. Const. 1821, 
 art. 7, § 3; Rev. Stat. pt. i, chap. 4, § 9; N. Y. Const. 1846, art. i, 
 § 3; 1894, art. I, § 3-] 
 
 6. Common schools. — The legislature shall provide for 
 the maintenance and support of a system of free common 
 schools, wherein all the children of this state may be 
 educated. 
 
 [Const. 1894, art. 9, 5 i.] 
 
The Second Constitution, 1821. 737 
 
 7. Trial by jury. — The trial by jury in all cases in 
 which it has been heretofore used shall remain inviolate 
 forever; but a jury trial may be waived by the parties in 
 all civil cases, in the manner to be prescribed by law. 
 
 [Const 1777, art. 41; 1821, art. 7, § 2; Rev. Stat, pt I, chap. 4, 
 18; N. Y. Const. 1846, art. i, § 2; 1894, art. i, § 2.] 
 
 8. Habeas corpus. — The privilege of the writ of habeas 
 corpus shall not be suspended, unless when, in cases of re- 
 bellion or invasion, the public safety may require its sus- 
 pension. 
 
 [English habeas corpus act, 31 Car. II., chap. 2, 1679; U. S. Const, 
 art. I, § 9, sub. 2; N. Y. Const. 1821, art. 7, i 6; Rev. Stat. pt. i, 
 chap. 4, § 10; N. Y. Const 1846, art. i, § 4; 1894, art. i, § 4.] 
 
 p. Justice to be speedily administered and process 
 freely granted. — Neither justice nor right should be sold 
 to any person, nor denied, nor deferred; and writs and 
 process ought to be granted freely and without delay to 
 all persons requiring the same, on payment of the fees 
 established by law. 
 
 [Magna Charta, chap. 40; N. Y. act of 1787, I 6; Rev. Stat pt i, 
 chap. 4, § 15.] 
 
 10. Indictments. — No person shall be held to answer 
 for a capital or otherwise infamous crime (except in cases 
 of impeachment, and in cases of militia when in actual 
 service, and the land and naval forces in time of war, or 
 which this state may keep with the consent of Congress 
 in time of peace, and in cases of petit larceny, under the 
 regulation of the legislature), unless on presentment or 
 indictment of a grand jury. 
 
 [U. S. Const 5th Amend.; N. Y. Const. 1821, art. 7, ^ T, Rev. 
 Stat pt I, chap. 4, i 13; N. Y. Const. 1846, art. I, § 6; 1894, art I, 
 § 6.] 
 
 Vol. I. Const. Hist. — ^47. 
 
738 Constitutional History of New York. 
 
 11. Rights of persons accused of crime. — In all crim- 
 inal prosecutions the accused has a right to a speedy and 
 public trial by an impartial jury, and is entitled to be in- 
 formed of the nature and cause of the accusation ; to be 
 confronted with the witnesses against him; and to have 
 compulsory process for obtaining witnesses in his favor. 
 
 [U. S. Const. 6th Amend.; Rev. Stat. pt. I, chap. 4, § 14.] 
 
 12. Accused may appear in person or by counsel. — In 
 any trial, in any court whatever, the party accused shall 
 be allowed to appear and defend in person and with coun- 
 sel, as in civil actions. 
 
 [U. S. Const. 6th Amend.; N. Y. Const. 1777, art. 34; 1821, art. 7, 
 § 7; Rev. Stat. pt. i, chap. 4, § 12; N. Y. Const. 1846, art. i, § 6; 
 1894, art. I, § 6. The provision giving the accused the right to 
 appear in person was first included in the Constitution in 1846, but 
 it had already been made a part of the Bill of Rights in the Revised 
 Statutes of 1828.] 
 
 i^. Accused person not compelled to be a witness 
 against himself. — No person shall be compelled in any 
 criminal case to be a witness against himself. 
 
 [U. S. Const, sth Amend.; N. Y. Const. 1821, art. 7, 8 7; Rev. 
 Stat. pt. I, chap. 4, § 13; N. Y. Const. 1846, art. I, § 6; 1894, art. I, 
 i 6.] 
 
 14. Excessive fines. — Excessive bail shall not be re- 
 quired, nor excessive fines imposed, nor shall cruel and 
 unusual punishments be inflicted, nor shall witnesses be 
 unreasonably detained. 
 
 [English Bill of Rights, 2 Wm. & M. chap. 2, 1689, art. 10; N. Y. 
 act 1787, chap. I, f 8; U. S. Const. Sth Amend.; Rev. Stat. pt. 
 I, chap. 4, § 17; N. Y. Const. 1846, art I,' § 5; 1894, art. i, § 5.] 
 
 75. Twice in jeopardy. — No person shall be subject to 
 be twice put in jeopardy for the same offense. 
 
 [U. S. Const, sth Amend.; N. Y. Const. 1821, art. 7, % 7; Rev. 
 Stat. pt. I, chap. 4, § 13; N. Y. Const. 1846, art. I, § 6; 1894, art. I, 
 § 6.] 
 
The Second Constitution, 1821. 739 
 
 16. Truth in libel cases, power of jury. — In all crim- 
 inal prosecutions or indictments for libels, the truth may 
 be given in evidence to the jury; and if it shall appear to 
 the jury that the matter charged as libelous is true, and 
 was published with good motives and for justifiable ends, 
 the party shall be acquitted; and the jury shall have the 
 right to determine the law and the fact. 
 
 [Const. 1821, art. 7, § 8; Rev. Stat. pt. i, chap. 4, 5 21; N. Y. 
 Const. 1846, art. I, § 8; 1894 art. i, § 8.] 
 
 17. Search warrants regulated. — The right of the peo- 
 ple to be secure in their persons, houses, papers, and ef- 
 fects, against unreasonable searches and seizures, ought 
 not to be violated; and no warrants can issue but upon 
 probable cause, supported by oath or affirmation, and par- 
 ticularly describing the place to be searched, and the per- 
 sons or things to be seized. 
 
 [U. S. Const. 4th Amend.; Rev. Stat. pt. I, chap. 4, i 11.] 
 
 18. Fines to he reasonable. — No citizen of this state 
 ought to be fined or amerced without reasonable cause, 
 and such fine or amercement should always be propor- 
 tioned to the nature of the oflfense. 
 
 [Magna Charta, arts. 20, 21, 22; N. Y. Bill of Rights, 1787, I 7; 
 Rev. Stat, pt i, chap. 4, § 16.] 
 
 jp. Private property taken for public use. — Private 
 property shall not be taken for public use without just 
 compensation. 
 
 [U. S. Const. Sth Amend.; N. Y. Const. 1821, art. 7, 5 7; Rev. 
 Stat. pt. I, chap. 4, § 13; N. Y. Const. 1846, art. I, § 6; 1894, art. i, 
 « 6.] 
 
 20. Liberty of speech and of the press. — Every citizen 
 may freely speak, write, and publish his sentiments on all 
 
740 Constitutional History of New York. 
 
 subjects, being responsible for the abuse of that right ; and 
 no law shall be passed to restrain or abridge the liberty of 
 speech or of the press. 
 
 [U. S. Const. 1st Amend.; N. Y. Const. 1821, art. 7, § 8; Rev. 
 Stat pt. I, chap. 4, § 20; N. Y. Const. 1846, art. i, § 8; 1894, art. I, 
 S 8.] 
 
 21. Members of the legislature not to be questioned for 
 speeches. — For any speech or debate in either house of the 
 legislature the members shall not be questioned in any 
 other place. 
 
 [English Bill of Rights, 2 Wm. & M. chap. 2, 1689, art. 9; N. Y. 
 Laws 1787, chap, i, H 11; U. S. Const, art. i, § 6, sub. i; N. Y. 
 Const. 1846, art. 3, § 12; 1894, art. 3, § 12.] 
 
 22. Right of petition preserved. — No law shall be 
 passed abridging the right of the people peaceably to as- 
 semble and to petition the government, or any department 
 thereof. 
 
 [English Bill of Rights, 2 Wm. & M. chap. 2, 1689, art. 5; Rev. 
 Stat. pt. I, chap. 4, § 19; N. Y. Const 1846, art. i, § 10; 1894, art 
 I, § 9.1 
 
 2^. Elections to be free and undisturbed. — All elec- 
 tions ought to be free; and no person by force of arms, 
 malice, menacing, or otherwise, should presume to dis- 
 turb or hinder any citizen of this state in the free exercise 
 of the right of suffrage. 
 
 [English- Bill of Rights, 2 Wm. & M. chap. 2, 1689, art. 8; N. Y. 
 act 1787, H 9; Rev. Stat, pt i, chap. 4, § 18.] 
 
 24. Taxes, how levied. — No tax, duty, aid, or imposi- 
 tion whatsoever, except such as may be laid by a law of 
 the United States, can be taken or levied within this state, 
 without the grant and assent of the people of this state, 
 by their representatives in senate and assembly; and no 
 
The Second Constitution, 1821. 741 
 
 citizen of this state can be, by any means, compelled to 
 contribute to any gift, loan, tax, or other like charge, not 
 laid or imposed by a law of the United States, or by the 
 legislature of this state. 
 
 [Petition of Right, 1628, I i ; English Bill of Rights, 2 Wm. & M. 
 chap. 2, 1689, art. 4; N. Y. act 1787, H 12; Rev. Stat. pt. i, chap. 4, 
 
 i 2.1 
 
 23. Right to keep arms. — A well regulated militia be- 
 ing necessary to the security of a free state, the right of 
 the people to keep and bear arms cannot be infringed. 
 
 [English Bill of Rights, 1689, D 7; U. S. Const. 2d Amend.; Rev. 
 Stat, pt I, chap. 4, § 3.] 
 
 26. Military service by citizens. — No citizen of this 
 state, can be constrained to arm himself, or to go out of 
 this state, or to find soldiers or men of arms, either horse- 
 men or footmen, without the grant and assent of the peo- 
 ple of this state, by their representatives in senate 
 and assembly, except in the cases specially provided for by 
 the Constitution of the United States. 
 
 [Petition of Right, 1628, I i ; English Bill of Rights, 2 Wm. & M. 
 chap. 2, 1689, art 4; N. Y. act 1787, H 12; Rev. Stat pt i, chap. 4, 
 §4-] 
 
 2^. Who excused from military service. — All such in- 
 habitants of this state, of any religious denomination 
 whatever, as, from scruples of conscience, may be averse 
 to bearing arms, are to be excused therefrom by paying 
 to the state an equivalent in money ; and the legislature is 
 required to provide by law for the collection of such 
 equivalent, to be estimated according to the expense, in 
 time and money, of an ordinary able-bodied militiaman. 
 
 [Const 1821, art. 7, § S; Rev. Stat pt i, chap. 4, § s; N. Y. 
 Const 1846, art. 11, § i; 1894, art. 11. § i; Mil. Code 1898, § i.] 
 
742 Constitutional History of New York. 
 
 28. Quartering of soldiers. — No soldier can, in time of 
 peace, be quartered in any house, without the consent of 
 the owner; nor in time of war, but in a manner to be pre- 
 scribed by law. 
 
 [Petition of Right, 1628; N. Y. Bill of Rights, 1787, IF 13; Rev. 
 Stat pt. I, chap. 4, § 6.] 
 
 29. Feudal tenure. — All feudal tenures of every de- 
 scription, with all their incidents, are declared to be abol- 
 ished, saving, however, all rents and services certain, 
 which, at any time heretofore, have been lawfully created 
 or reserved. 
 
 [Const. 1846, art. I, { 12; 1894, ai't- i, S n.] 
 
 JO. Allodial tenures. — ^All lands within this state are 
 declared to be allodial, so that, subject only to the liabil- 
 ity to escheat, the entire and absolute property is vested 
 in the owners, according to the nature of their respective 
 estates. 
 
 [Const. 1846, art. l, § 13; 1894, art. i, § 12.] 
 
 J/. Escheats. — The people of this state, in their right 
 of sovereignty, are deemed to possess the original and 
 ultimate property in and to all lands within the jurisdic- 
 tion of the state ; and all lands the title to which shall fail, 
 from a defect of heirs, shall revert, or escheat to the peo- 
 ple. 
 
 IConst. 1846, art. I, § 11; 1894 art. i, i 10.] 
 
 5^. Civil service appointments and promotions.- — Ap- 
 pointments and promotions in the civil service of the 
 state, and of all the civil divisions thereof, including cities 
 and villages', shall be made according to merit and fitness, 
 to be, ascertained, so far as practicable, by examinations 
 
The Second Constitution, 1821. 743 
 
 which, so far as practicable, shall be competitive; pro- 
 vided, however, that honorably discharged soldiers and 
 sailors from the Army and Navy of the United States in 
 the late Civil War, who are citizens and residents of this 
 state, shall be entitled to preference in appointment and 
 promotion, without regard to their standing on any list 
 from which such appointment or promotion may be made. 
 Laws shall be made to provide for the enforcement of this 
 section. 
 
 [Const. 1894, art. S. 5 9-1 
 
 jj. Damages for injuries causing death. — The right of 
 action now existing to recover damages for injuries re- 
 sulting in death shall never be abrogated ; and the amount 
 recoverable shall not be subject to any statutory limita- 
 tion. 
 
 [Const. 1894, art. I, § 18.] 
 
 34. Personal rights; discrimination prohibited. — That 
 all persons within the jurisdiction of this state shall be 
 entitled to the full and equal accommodations, advantages, 
 facilities, and privileges of inns, restaurants, hotels, pub- 
 lic conveyances on land and water, and all other places of 
 public accommodation or amusement, subject only to the 
 conditions and limitations established by law, and appli- 
 cable alike to all citizens. That no citizen of the state 
 possessing all other qualifications which are or may be 
 required or prescribed by law shall be disqualified to serve 
 as grand or petit juror in any court of this state on ac- 
 count of race, creed, or color. 
 
 [Laws 189s, chap. 1042. The act prescribes penalties for its viola- 
 tion.] 
 
 Council of Revision. 
 
 The Council of Revision was represented by Chancellor 
 Kent, Chief Justice Spencer, and Associate Justices Piatt 
 
744 Constitution^ History of New York. 
 
 and Van Ness. The attempt to overthrow the council 
 brought out, from the judges, a very able defense; and 
 while they did not seek to retain the council as a perma- 
 nent institution, they showed that it was based on a salu- 
 tary principle of administration, and . that it had not 
 abused its powers, but, on the contrary, had rendered 
 great service to the state in preventing hasty, ill-consid- 
 ered, and unconstitutional legislation. 
 
 The section in the first Constitution relating to the 
 Council of Revision was prepared by Robert R. Livings- 
 ton. He became the first chancellor, and held the posi- 
 tion twenty-four years. He was, therefore, a member of 
 the council during all that time. According to a table 
 used by Judge Jonas Piatt in a speech on the Council of 
 Revision, eighty-two bills were vetoed while Chancellor 
 Livingston was a member of the council, and one hundred 
 and twenty-eight during the forty-five years of its exist- 
 ence. The whole number of bills passed during this 
 period is given as 6,590. The bills vetoed amount to less 
 than 2 per cent of the entire number, — an average of less 
 than three a year. Two years no bills were vetoed, and 
 ten years show only one veto each year. Alfred B. Street 
 published a history of the Council of Revision in 1859, 
 and his figures differ somewhat from those given by 
 Judge Piatt, but they cover a little longer time. Accord- 
 ing to Mr. Street, the council vetoed one hundred and 
 sixty-nine bills, fifty-one of which were passed over the 
 veto, leaving one hundred and eighteen which did not 
 become laws. Taking either Judge Piatt's or Mr. Street's 
 figures as the basis of an inference, it is clear that the 
 Council of Revision was a very conservative body, and 
 that its authority was not "dangerous," as might be sup- 
 posed from the language of the Ulshoeffer committee's 
 report. According to Judge Piatt's figures, eighty-three 
 bills were vetoed as unconstitutional. Some of these 
 
The Second Constitution, 1821, 745 
 
 were passed over the veto, but it is quite evident that a 
 large number of unconstitutional bills were thus disposed 
 of by the chancellor and judges without waiting for the 
 law to be attacked, perhaps years after its passage, in a 
 judicial proceeding. 
 
 The most substantial reason for abolishing the council 
 was the intermingling of judicial and legislative functions, 
 occasioned by requiring the judges to consider all bills 
 passed by the legislature. The council might reject bills 
 because it did not agree with the legislature on questions 
 of policy ; and it was charged that the council had in fact 
 rejected bills for this reason; but it is evident, from the 
 small number of bills vetoed, that the council did not seri- 
 ously interfere with the legislature in determining matters 
 of policy. 
 
 Governor Tompkins said he believed that the framers 
 of the first Constitution meant to limit the jurisdiction of 
 the Council of Revision to the consideration of constitu- 
 tional objections to bills. "The council had become the 
 third branch of the legislature, with a control equal to 
 two thirds of all the representative branches." A sugges- 
 tion was made by several delegates that the members of 
 the council had vetoed bills from party views. Chancel- 
 lor Kent replied to this insinuation, giving details of dif- 
 ferent vetoes, with the votes thereon, and concluded his 
 statement with the following observation : 
 
 "Thus, sir, we perceive that in the cases selected to 
 prove the predominating influence of party spirit in the 
 council, the spirit of- party was subdued by the firmness 
 and independence of the council. I am not called here to 
 vindicate my official conduct as a member of the council, 
 nor am I responsible to the house for my acts in another 
 place; but I must be permitted to say, after the charge 
 that has been made, that for the twenty-three years in 
 which I have had the honour to be a member of the Coun- 
 
746 Constitutional History of New York. 
 
 cil of Revision, I have always endeavored to discharge 
 my trust without regard to party influence, and with a 
 single reference to the intrinsic merits of the bills that 
 have been submitted to the council. My judgment may 
 have frequently misled me, but I have never considered 
 myself, in my official character, as the representative of 
 a party. My judicial appointments have been conferred 
 upon me successively by different parties, and I have al- 
 ways considered myself, and have always endeavored to 
 discharge my duty in my public character, as the impartial 
 trustee of the community at large. I therefore deny and 
 disclaim, so far as it respects myself, the imputation 
 which has been cast upon the council." 
 
 Judge Piatt spoke at some length on the proposition to 
 abolish the council, giving a history of its labors, and, in 
 closing, said : 
 
 "Let the Council of Revision descend in silence to the 
 grave. But let no man now write any inscription on its 
 tomb. When the feelings and interests and passions of 
 the day shall have subsided, if I do not greatly deceive 
 myself, impartial posterity will inscribe an epitaph on that 
 tomb, expressive of profound veneration." 
 
 One delegate called Judge Piatt's last remarks a 
 "requiem," and it is evident from the debates that for 
 some reason, whether justifiable or not, the council no 
 longer enjoyed the fullest confidence of the leaders in 
 public affairs. At this distance the impression is almost ir- 
 resistible that the hostility to the council had its origin 
 largely in partisan ambition which was sometimes de- 
 feated by the refusal of the council to sanction certain 
 bills. Besides, the council was beyond the reach of ordi- 
 nary partisan influence, for the reason that its judicial 
 meml^ers held office during good behavior, or until they 
 reached the age of sixty years ; consequently this council 
 was the most permanent part of the state government. 
 
The Second Constitution, 1821. 747 
 
 Governors might come and governors might go, but the 
 council remained. Legislators might serve their brief 
 term, but whatever they did in the way of legislation 
 must pass under the scrutiny of this council. 
 
 It has already been noted that Chancellor Livingston 
 was a member of this council for twenty-four years, and 
 that Chancellor Kent was also a member for the same 
 length of time. It is not surprising, therefore, that after 
 a while a feeling should have grown up in the state that 
 the judicial members of the council, not being responsible 
 to the people for their appointment, nor for their continu- 
 ance in office, sometimes stood in the way of schemes pro- 
 posed by the dominant party in the legislature. It was 
 suggested while the proposition to abolish the council 
 was under discussion, that if it had limited its functions 
 to the consideration of constitutional questions only it 
 would have been continued as a necessary and useful part 
 of the machinery of state government. But the council 
 had the power, and it was its plain duty, as it is the duty 
 of the governor now, to point out defects in bills aside 
 from any constitutional question, for the purpose of per- 
 fecting the statutes. 
 
 The power given to the judiciary by the first Constitu- 
 tion, to prevent the enactment of unconstitutional laws, 
 was of great value in shaping our early legislation, and 
 doubtless accounts to a large degree for the few cases in 
 our early judicial history involving the constitutionality 
 of statutes. It would be an advantage in constructing 
 legislation now if there were some method to determine 
 the constitutionality of laws prior to their enactment ; and 
 it would be an improvement in our law-making machinery 
 if the legislature and the governor had the right to re- 
 quire the opinion of the court of appeals as to the consti- 
 tutionality of a pending bill. This opinion should, of 
 course, be limited strictly to the question of constitution- 
 
748 Constitutional History of New York. 
 
 ality. The legislature and the governor would thus have 
 the aid of our highest judicial tribunal while the bill is 
 under consideration. If the court's opinion should be ad- 
 verse to the bill, it could be amended or laid aside, and 
 not be made a statute, as is now the case, with the possible 
 resulting complications of public and private interests in- 
 volved in its constitutionality. To this extent it seems 
 clear that Mr. Livingston showed wise forethought and 
 statesmanship in requiring the aid of the judiciary in the 
 enactment of laws. The legislature and the governor 
 may consult the attorney general, or seek other legal ad- 
 vice, but an opinion obtained from either source is not 
 binding on the courts; and such opinions, however emi- 
 nent their authors may be, cannot take the place of the 
 solemn determination of our highest judicial tribunal, 
 which must ultimately determine these disputed ques- 
 tions, and whose judgments deservedly command such 
 high respect. 
 
 The value and importance of a resort to the judiciary 
 in the first instance has already been noted in connection 
 with our early legislation. Chancellor Livingston's pol- 
 icy might profitably be revived so far as it related to the 
 determination of constitutional questions. There was a 
 partial revival of its spirit in 1893, when the legislative 
 law was amended by making it the duty of the Statutory 
 Revision Commission, on the request of either hotase of 
 the legislature, or any committee, member, or officer there- 
 of, to "render opinions as to the constitutionality, con- 
 sistency, or other legal effect of proposed legislation." 
 The legislature very frequently consulted the Statutory 
 Revision Commission, and procured its advice concern- 
 ing pending legislation; but while the legislature might 
 consent to be guided by the opinions of the commission, 
 it was not bound to do so, and these opinions were only 
 advisory, and did not have the effect of a judicial decision^ 
 
The Second Constitution, 1821. 749 
 
 Besides, when there is no revision commission, the stat- 
 ute is, of course, inoperative. None of these makeshifts 
 can take the place of judicial advice. 
 
 Council of Appointment. 
 
 The destruction of the Council of Appointment had 
 teen foreordained even before the people had determined 
 to hold a new convention, and within three weeks after 
 the Convention met, the select committee, of which Mr. 
 Van Buren was chairman, brought in a report providing 
 for the abolition of the council. The organization and 
 history of the council have already been noted, and also 
 the reasons which actuated the statesmen of that period 
 in desiring its abolition. But it was felt that, while as a 
 consequence of the mistaken construction of the powers 
 of the council under the first Constitution, as enunciated 
 hy the Convention of 1801, the council had outlived its 
 usefulness as a desirable feature of the state government, 
 the principle underlying it was not objectionable. Hence, 
 several substitute plans were offered by prominent mem- 
 bers of the Convention before it was finally agreed to 
 transfer the confirming power to the senate. General 
 Tallmadge proposed that the eight senators of the fourth 
 class constitute an executive council, and that, the gov- 
 ■ernor should nominate, and by and with the consent of 
 the council appoint, certain officers. This plan was re- 
 jected by a vote of 48^0 68. 
 
 Mr. Russell proposed an executive council of eight 
 members, — one from each district, — to be elected by the 
 people. The governor was to have a casting vote in the 
 council, and was also given the exclusive right to nomi- 
 tiate all state officers; but each councilor was given the 
 exclusive right to nominate all officers whose powers were 
 to be exercised in his district. This proposition received 
 36 votes. A council of appointment was also proposed 
 
750 Constitutional History of New York. 
 
 for New York city only, to be called a "Board of Elec- 
 tors," composed of as many members as there were wards, 
 the people of each ward electing one. 
 
 These plans and their serious consideration by the Con- 
 vention show the tenacity of habit, and the tendency to 
 continue existing conditions. There was evident reluct- 
 ance on the part of many men to have such a large con- 
 firming body as a senate of thirty-two members, but the 
 transition was comparatively easy from four of the sena- 
 tors acting as a council to the whole number acting in 
 effect as a council, although under another name. The 
 practical result of the change was the enlargement of the 
 council from four to thirty-two members, and vesting in 
 the governor the exclusive right of nomination. 
 
 Thus after twenty-eight years since the nominating 
 power of the governor had been actually disputed in the 
 case of the appointment of Egbert Benson as a justice of 
 the supreme court, in 1794, against the protest of the gov- 
 ernor, George Clinton, that power was clearly and firmly 
 fixed in the Constitution, and John Jay was vindicated. 
 
 Miscellaneous. 
 
 The common-school fund, already established, was 
 fixed and made permanent, with the declaration that the 
 interest of the fund "shall be inviolably appropriated and 
 applied to the support of common schools throughout this 
 state." Lotteries were prohibited; the provision of the 
 first Constitution concerning land contracts with Indians 
 was continued ; the provision of the first Constitution rela- 
 tive to the continuance of the common and colonial law 
 was continued, with the exception that the provision in 
 the first Constitution, continuing the statute law of Eng- 
 land and Great Britain, was omitted ; the provision of the 
 first Constitution relative to royal grants was continued. 
 
 One of the subjects especially committed to this conven- 
 
The Second Constitution, 1821. 75^ 
 
 tion related to the method of amending the Constitution. 
 The first Constitution was defective in not containing any 
 provision for its amendment. Under that Constitution 
 there could be no amendments, except by a convention, 
 and probably this condition prevented many amendments, 
 because of the unwillingness of the people to call conven- 
 tions. The Convention of 1821 adopted the plan, since 
 continued, of permitting amendments to be recommended 
 to the people by the legislature ; but, to prevent hasty ac- 
 tion, required the proposed amendment to pass the scru- 
 tiny of two legislatures. This gives the people an oppor- 
 tunity to elect a new legislature while the proposed 
 amendment is pending, and, if deemed of sufficient im- 
 portance, it may receive special consideration in the elec- 
 tion. A significant change concerning constitutional 
 amendments will be considered under the Constitution of 
 1894. 
 
 The new Constitution provided that several of its most 
 important parts should take effect on the last day of Feb- 
 ruary, 1822; that members of the existing legislature 
 should, on the first Monday of March, take an oath to sup- 
 port the new Constitution so far as the same should then 
 be in effect ; that elections should be held on the first Mon- 
 day of November, 1822, for elective officers under the 
 new Constitution ; that commissions of all appointive of- 
 ficers should expire on the last day of December, 1822, 
 and that the whole Constitution should be in force from 
 that day. 
 
 Conclusion. 
 
 The convention act authorized the submission of the 
 Constitution to the people either as a whole or in separate 
 parts. The report on this subject, prepared by Mr. Root, 
 stated that because so much of the Constitution was new, 
 and because of the relations of its various parts to one 
 
752 Constitutional History of New York. 
 
 another, it would be impracticable to submit specific parts 
 without reference to the remainder ; therefore the Conven- 
 tion determined to submit the Constitution as a whole. 
 
 The Convention directed that the Constitution be sub- 
 mitted to the people at an election to be held January 1 5, 
 16, and 17, 1822, and ordered the printing and distribu- 
 tion of five thousand copies of the Constitution, of the 
 resolution providing for its submission, and of the Con- 
 vention's address to the people. 
 
 The Constitution was adopted by the Convention at its 
 last session on the loth day of November, 1821, with nine 
 negative votes. Ninety-eight delegates then signed the 
 Constitution, and the engrossed amended Constitution 
 thus signed was on that day delivered to the secretary of 
 state, and deposited in his office, where it is still pre- 
 served. 
 
 President Tompkins, in his closing address, on the ad- 
 journment of the Convention, said: "It is my sincere 
 hope that the approbation of the community may greet 
 the result of our consultations ; and that it may accomplish 
 the momentous objects for which we have been assem- 
 bled ; and redound to the liberty, tranquillity, and perma- 
 nent welfare of our constituents and of posterity." 
 
 Governor De Witt Clinton, in his annual speech to 
 the legislature on the 2d of January, 1822, made the 
 following observations concerning the new Constitution, 
 which was then under consideration by the people : 
 
 "Since the adjournment of the legislature, an event has 
 occurred of the highest importance to the people of this 
 state. The delegates elected 'for the purpose of con- 
 sidering the Constitution of this state, and making such 
 alterations in the same as they may deem proper, and to 
 provide the manner of making future amendments there- 
 to,' have concluded their deliberations, and presented 
 the result for the ratification or rejection of the people. 
 
The Second Constitution, 1821. 753 
 
 in the shape of a new Constitution, varying essentially in 
 many of its provisions from the present frame of govern- 
 ment. As this subject is now under the consideration of 
 the supreme and sovereign power of the community, the 
 source of all legitimate government, it would be obviously 
 improper for the derivative and subordinate authorities 
 to interfere in their official characters with its delibera- 
 tions and decisions. Whatever advice we offer, what- 
 ever determination we form, and whatever course we 
 pursue, must be indicated in our individual capacities, as 
 component members of a great community, acting in 
 its sovereign character; and whenever the momentous 
 decision is made, and whatever it may be, it will be our 
 incumbent duty to obey implicitly the determinations of 
 the people, and to carry into full effect their expressed 
 volitions. Were it not for considerations so imperative, 
 I should on this, as I trust I have on all proper occasions, 
 have communicated with frankness and candor my views 
 in relation to the bearing of this important question on 
 the public welfare. It is a spectacle truly felicitating, 
 to observe the calm and dignified moderation with which 
 our constituents have approached this important subject, 
 for, so far as my observation has extended, the discus- 
 sions have been free from the usual asperities and agita- 
 tions of the times. It is, indeed, not a question involving 
 the views of personal ambition, the interests of party 
 ascendency, or the feelings of local contention. It looks 
 to the past for enlightened instruction ; to the present for 
 wise and patriotic decision ; and to the future for general 
 and permanent benefit. To perceive a vast and growing 
 population sitting in judgment on its own form of gov- 
 ernment, acting with intelligence, independence, and firm- 
 ness, discarding minor and evanescent considerations, 
 and consulting the greatest happiness of the greatest 
 number, is a sublime sight, administering to the best 
 Vol. I. Const. Hist. — 48. 
 
754 Constitutional History of New York. 
 
 hopes, and answering the highest expectations, of the 
 friends of republican government. And let us humbly 
 supplicate the Supreme Dispenser of all good to shed his 
 propitious influence on this occasion, and to produce a 
 result auspicious to the stability of civil liberty and 
 ascendency of good government, and the prosperity of 
 our beloved country." 
 
 The Constitution was ratified by the people by a vote 
 of 74,732 to 41,402, and all of its provisions went into 
 operation during that year. Thus, on the last day of 
 December, 1822, the first Constitution of New York 
 passed into history. It had served its purpose well. It 
 might almost literally be said of it that it was bom on 
 the battle-field. Its authors wrote it, musket in hand. 
 They left the arena of war at short intervals to sit in the 
 councils of state, to construct a government for times of 
 peace. It had some defects, not especially manifest at 
 first, but which became apparent as the state increased in 
 wealth, population, and commercial interests, and as 
 new problems were presented for the consideration of 
 the people. It was founded on correct principles; but 
 these principles needed extension and enlargement to 
 meet the growing needs of the state. It was a good Con- 
 stitution for that time, and deserved the encomiums which 
 it received from statesmen of that period. We may most 
 fittingly quote here the eloquent words of Chancellor 
 Kent, who, in the Convention of 1821, speaking of the 
 first Constitution, said: "This state has existed for 
 forty-four years under our present Constitution, which 
 was formed by those illustrious sages and patriots who 
 adorned the Revolution. It has wonderfully fulfilled all 
 the great ends of civil government. During that long 
 period, we have enjoyed, in an eminent degree, the bless- 
 ings of civil and religious liberty. We have had our lives, 
 our privileges, and our property, protected. We have had 
 
The Second Constitution, 182 1. 755 
 
 a succession of wise and temperate legislatures. The code 
 of our statute law has been again and again revised and 
 corrected, and it may proudly bear comparison with that 
 of any other people. We have had, during that period 
 (although I am, perhaps, not the fittest person to say it), 
 a regular, stable, honest, and enlightened administration 
 of justice. All the peaceable pursuits of industry, and 
 all the important interests of education and science, have 
 been fostered and encouraged. We have trebled our 
 numbers within the last twenty-five years, have displayed 
 mighty resources, and have made unexampled progress 
 in the career of prosperity and greatness. Our financial 
 credit stands at an enviable height ; and we are now suc- 
 cessfully engaged in connecting the great lakes with the 
 ocean by stupendous canals, which excite the admiration 
 of our neighbors, and will make a conspicuous figure, 
 even upon the map of the United States. These are some 
 of the fruits of our present government." 
 
 Governor Joseph C. Yates, who had been a justice of 
 the supreme court under the first Constitution, in his 
 first message to the legislature, January 7, 1823, referring 
 to the change of Constitutions, said : 
 
 "There has been only one period since the declaration 
 of our independence, that the legislature of the state of 
 New York have been called upon to perform such high 
 and responsible duties as at this session will devolve upon 
 you ; and when we reflect upon the conduct of those who 
 formed the first Constitution of this state, and organized 
 a government, every well-ordered mind must be led with 
 gratitude to bow before the throne of Grace, returning 
 fervent thanks to the God of heaven and of earth, who 
 raised up for us, in that time of need, men eminently 
 endowed with great intelligence, integrity, and superior, 
 I had almost said inspired, views of the rights and liber- 
 ties of man. The checks and balances of the old Con- 
 
75^ Constitutional History of New York. 
 
 stitution of this state were admirable, when judged with 
 reference to the time in which it was adopted; just 
 emerging from a state of colonial dependence, and while 
 desperately, and almost convvilsively, struggling to break 
 the fetters of trans-Atlantic despotism ; almost every man 
 in the community at that time possessing high ideas of 
 the necessity of a strong executive power, and great 
 legislative independence ; and although we have amended 
 what we have deemed its errors, and what, in the present 
 state of the community, were really such, yet the candid 
 mind cannot but adinire and applaud its great compara- 
 tive excellence. I could not, gentlemen, withhold at this 
 time, and on this occasion, the expression of my affection 
 and veneration for those men, great in intellect and 
 honesty, several of whom were personally known to many 
 of us, who, having placed and seen their country in pros- 
 perity and the enjoyment of liberty, have gone to sleep 
 with their fathers until the great day of retribution. 
 
 "This government has, by the late amendments, been 
 adapted to the present feelings and views of the com- 
 munity, the only proper standard by which a good gov- 
 ernment can be formed ; and no time for its reorganiza- 
 tion could be more auspicious than the present." 
 
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